Supreme Court Justice Ruth Bader Ginsburg On Polarization, Discrimination and Her Favorite Dissent: Big Brains podcast

Show Notes

One of the incredible perks of making a podcast at a place like the University of Chicago is the opportunity to feature some of the incredible guests who speak on our campus.

This week, Supreme Court Justice Ruth Bader Ginsburg was here for a conversation hosted by Katherine Baicker, dean of the Harris School of Public Policy. On this episode of the Big Brains podcast, please enjoy Justice Ginsburg discussing her history and role on the Supreme Court.

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Transcript:

PAUL RAND: Hi, this is Paul Rand, host of Big Brains. You know, one of the most amazing perks of making a podcast at the University of Chicago is having the opportunity to feature some of the most incredible guests who speak on our campus.

This week, Supreme Court Justice Ruth Bader Ginsburg was here for a conversation hosted by Katherine Baicker, dean of the Harris School of Public Policy. Justice Ginsburg spoke about a number of topics that I know Big Brains listeners will find interesting, insightful and telling. So for this episode, please enjoy Justice Ginsburg in conversation with Dean Baicker at the University of Chicago.

KATHERINE BAICKER: Thank you all for being here. It is the thrill of a lifetime to get to facilitate this conversation. And I have to tell you I did not know how many friends I had in Chicago--until this event was announced, and then all sorts of people wanted tickets. So I'm delighted to have you here and those of you who are watching remotely. And I'm so happy to be so popular in Chicago. Justice Ginsburg, there are so many questions that I would like to ask you and that I know the audience would like to ask you. But I'd like to start with something very straightforward. How has the court changed in the years that you've been on it?

RUTH BADER GINSBURG: One way it hasn't changed-- the court is the most collegial place I've ever worked. More collegial than both law faculties on which I served.

First, Rutgers, then Columbia. Even more collegial than the DC Circuit. Collegiality is very important in our workplace, because we couldn't do the job that the Constitution assigns to us unless we work well together. So the press tends to come-- to concentrate on our divisions, on our 5-3 or 5-4 decisions.

But every year in the now 26 years I've served on the court, we always agree more often than we disagree. So the 5-4 rate this last term was about 20%. But the unanimity rate, at least in the bottom line judgment, was 29%. So in that respect, the court hasn't changed.

One important way it has changed is the perception of the court by the audience, including the 10-minute line of children who stream in and out to observe for a brief time. When I was a new justice, people had become accustomed to there being a woman on the US Supreme Court. And that woman was Sandra Day O'Connor who was the lone woman for 12 years. So every now and then when I asked a question, the response would be Justice O'Connor.

And then Sandra might say, I'm Justice O'Connor, she's Justice Ginsburg. We don't look alike.

We don't talk alike. But they heard a woman's voice-- they knew there was a woman in the court. It's not that way any longer, because I've been there so long I sit next to the chief. And to the left some seats down is Justice Sotomayor. And to the right Justice Kagan. We're all over the bench. We're one third of the bench. And people who have observed arguments at the court will have noticed that my sisters in law are not shrinking violets.

They participate actively in the colloquy that goes on at oral argument. And in the years that Justice Scalia was with us, it was a competition between Justice Sotomayor and Justice Scalia who could ask the most questions at oral argument.

KATHERINE BAICKER: Well, you, of course, have a famous friendship with Justice Scalia that has been commemorated in comedic operas, has been the topic of documentaries. Do you have advice for rising policymakers in the audience about how to reach across divides of opinion or principle and work with someone whose opinion you may disagree with but whom you value as a colleague and respect?

RUTH BADER GINSBURG: One of the reasons I was so fond of Justice Scalia is he had an infectious sense of humor. The first time I heard him speak he was on the faculty-- the law faculty of the University of Chicago. And he was speaking on some administrative law topic. I disagreed with a lot of what he said but I was charmed by the way he said it. And then when we worked together on the DC Circuit, the bench was three judges. He would sometimes whisper to me during oral argument, and what he said was so funny I had all I could do to keep from bursting out into hysterical laughter.

You mentioned that we shared a passion for opera. We both cared a lot about families. And we also cared about not only getting it right as we saw the right, but writing an opinion that at least other lawyers and judges could understand. So Justice Scalia worked very hard on his opinions. So did I. Our styles were not at all alike.

He was a fine grammarian. He was the son of a father who taught Latin at Brooklyn College and his mother was a grade school teacher. So every once in a while he would stop by chambers or call me on the telephone and say, Ruth, you committed a grammatical error.

I don't want to embarrass you by circulating my comment to the court, but you should fix it.

And I in return would sometimes say, this opinion is so strident. You will be more persuasive if you toned it down. And that advice he never took.

We were supers together at the Washington National Opera. We traveled together on judicial exchanges, most famously in India where there is a photograph of the two of us riding on a very elegant elephant. My feminist friends commented, why are you sitting in the back of the elephant? And I said, well, the driver said it had something to do with the distribution of weight.

The comic opera Scalia/Ginsburg-- again, why Scalia first? Because seniority really matters in our workplace and he was appointed to the court some years before I was. So I miss him very much. Our conferences are not as lively as they were when he was with us.

KATHERINE BAICKER: Well, you mentioned having first met him here at the University of Chicago. And another one of your former colleagues, Justice John Paul Stevens, was also a U Chicago alum. And he's written about amendments-- he had written about amendments that he'd like to see to the US Constitution. You've spoken eloquently about the Equal Rights Amendment. I wondered what changes you'd like to see to our constitution.

RUTH BADER GINSBURG: Well, first, it's largely a dream because our constitution is powerfully hard to women. I know that from experience, both with the Equal Rights Amendment and the amendment that would give DC representation in Congress. So I suppose I would agree with most of the items on Justice Stevens' list, including the electoral college. But I think it's more theoretical than real-- the prospect that we will have amendments of the kind. I think he also included Citizens United campaign financing on his list.

KATHERINE BAICKER: You worked tirelessly for women's rights in the years before you joined the court. Has the trajectory of women's rights evolved over the last 40 years as you would have imagined? What's surprising to you? What work do you think still needs to be done? What are some of the highs and lows?

RUTH BADER GINSBURG: In the 1970s, when I was litigating gender discrimination cases, our target was fear. The law books of the country and the states were just riddled with gender-based classifications. And our mission in the '70s was to get rid of all the overt gender-based classifications. Classifications that, by the way, most of the judges I addressed thought operated benignly in women's favor.

So in contrast to race discrimination, which everyone recognized was odious, most of the judges thought that women were favored by the law if they were treated differently as a preference. So, for example, women weren't called for jury duty in many states. The reason they shouldn't be distracted from their duties as the homemaker and the rearer of children.

There was a famous case in 1948. The State of Michigan had passed a law barring women from serving as bartenders unless their husband or father owned the establishment. So the case was brought by two women, the Goesaerts. The mother owned the tavern. Her daughter was a bartender. And this law would have put them immediately out of business.

Women had come into bartending roles as others during World War II when there was a short supply of men. So women took over jobs that had once been the province of men. And then I think it was the Bartenders Union that wanted to get the women out of the business. So Michigan passed this law.

And when it came to the Supreme Court, the court treated it almost as a joke, made references to Chaucer's old ale wife. But the point was that bars can sometimes be rowdy places and women needed the protection of the father or the husband. The court never noticed that there was no restriction on barmaids, the ones who carried the drinks to the table, with rowdy men. But the one who was shielded behind the bar was out of a job.

The end of that story is a good one, because the liquor commission in Michigan decided even though they had this victory in the Supreme Court, they were not going to enforce the law. So no woman lost her job as a bartender as a result of that decision.

Or later, in 1961, Gwendolyn Hoyt's case. Gwendolyn Hoyt was a woman-- we would today call her abused. One day her philandering, abusive husband had humiliated her to the breaking point. She spied her son's baseball bat in the corner of the room. She lifted it up and with all her might she hit him over the head. He fell against the stone floor. End of their altercation, beginning of the murder prosecution.

Gwendolyn Hoyt was from Hillsborough County in Florida, where women were not put on the jury rolls. If they wanted to serve, they could come to the clerk's office and volunteer. But if they didn't volunteer, they weren't called. And the Supreme Court's reaction to that case as late as 1961 was women have the best of both worlds. If they want to serve, they can. But if they don't want to, we won't distract them from their home duties.

You could imagine how Gwendolyn Hoyt reacted to that decision. I mean, her notion was perhaps a jury including women wouldn't acquit me, but they might convict me of the lesser crime of manslaughter instead of murder. She was, in fact, convicted of murder by an all-male jury. That was the, quote, "liberal Warren Court decision."

10 years later, in 1971, the Supreme Court turns in a new direction. Burger is then the Chief Justice. And in that decade, in case after case, the Supreme Court struck down gender lines in the law based on the then prevailing separate spheres notion that the man was the breadwinner who counted, the women were responsible for the home and raising the children.

So typical examples-- social security. Male wage earner dies, there are benefits for his widow. Female wage earner dies, no benefits for the widower. That kind of distinction pigeonholing people in roles based on gender was almost gone. There are very, very few explicit gender lines in the law.

And all that happened during the years of the so-called conservative Burger court. My explanation for why it happened is that society had changed and the court was catching up to the way people were living. So the two-earner family had become commonplace in the '60s and continuing into the '70s. The time was ripe for the change that the court made.

KATHERINE BAICKER: So in thinking about the court catching up with society and the stability of the law versus the evolution of the law, the principle of stare decisis is often used to govern which cases the court takes in thinking about whether something is a matter of settled law or not. And it seems as though there is a balancing act between having a stable legal, political, regulatory environment for people to make decisions and having the law evolve to match a different society and a different culture and different times.

It also seems as though the people who call on that principle are often motivated by their view of whether the law is currently in the right place or not. But it's very much in the eye of the beholder. What's your view on how stable the law should be and how that principle should drive the evolution of the law along with or behind social change?

RUTH BADER GINSBURG: Well, when the law is just plain wrong--as it was in gender classifications-- holding people back, creating artificial barriers to the ability of a person to realize her own potential. One of the important cases that was decided-- it was decided in-- it was the end of Justice O'Connor's first year on the court, so it would have been 1982. The case was titled Hogan v. University of Michigan School for Women-- University of Mississippi School for Women.

And there was a young man, Hogan, who wanted to be a nurse. The best nurses training was available at Mississippi University for Women. But he was turned down because he was the wrong sex. The dissenters in that case saw the reservation of the school to women as a kind of affirmative action. But Justice O'Connor understood that there is nothing that will upgrade salaries in the nursing profession more than having men--want to do that job. So she wrote a very fine opinion. Our target was plain. Our job was relatively easy because these classifications were overt. What's left after the job has been done of clearing the statute books of explicit gender-based discrimination is what is sometimes called unconscious bias.

The symphony orchestra is one example of that. Growing up I never saw a woman except perhaps playing the harp. Howard Taubman, who was a fine critic for The New York Times, said, blindfold me and I can tell you if it's a woman playing the piano or a man. So they did.

And he was all mixed up. To his credit, he recognized that when he saw a woman coming on stage, he had a lesser expectation than he did for a man. Someone then got the bright idea, well, why not drop a curtain so the people who are conducting the audition won't see the people who are applicants for the position. And close to overnight, you saw a change in the makeup of symphony orchestras. That simple device to drop a curtain, which sadly we can't duplicate in all fields of human endeavor.

So one of my favorite cases from the '70s-- the late '70s-- was a Title VII case. Title VII is our principal anti-discrimination in employment law. It was against AT&T for not promoting women to middle management jobs. The women did fine on all the standard criteria until the very last one, which was called a total person test. And the total person test was an interviewer sitting down with the candidate for promotion and having a conversation.

Women dropped out disproportionately. Why? Because the male interviewer confronting someone who looked like himself-- there was a certain rapport, he understood what this person was like. But if it's someone from another race or if it's a woman, there's a certain discomfort level. The interviewer doesn't really know what makes this person-- what kind of person she is. So his discomfort-- his own discomfort is reflected in the score that he gives.

There was a very good case-- it was also in the '70s-- by the European Court of Justice, which is the highest court for the European Union. And it was about a province in Germany that had a rule for public sector jobs that if the field is one that had been dominated by men and there were two candidates-- one male, the other female-- and they're roughly equal in qualifications, prefer the female.

And the way that was explained was this is not really a preference for women. It is making up for the unconscious bias of the decision-maker, of the one who selects the person for the job. So unconscious bias remains less than it once was, but it is there and it is an impediment.

The other is what's been called a work-life balance. How do we order the work life so that a person can have a home life as well and be part of raising the children? Women still disproportionately take care of the home and the raising of the children, but it's changing. And I see it in my own son. I see it in my law clerks.

The years I was on the DC Circuit, I received a clerkship application from a man who explained that he was going to Georgetown at night because his wife was an economist, had a good job at the World Bank, and so he was the primary custodian of their two young children. I will admit also that what attracted me to him is his writing sample was not a law review note. It was his first-year legal writing paper which was the idea of contract as played out in Wagner's Ring Cycle.

Anyway, so he's clerking for me and he has to pick up his daughter and have soccer practice. I asked the then Chief Justice Rehnquist-- this is very early days. There wasn't yet the internet. This is in '93 to '94. And I asked the Chief, can this law clerk have access to Lexis and Westlaw at home? Absolutely not. They have to be on the premises.

The next year, every law clerk, parent or not, had access to Lexis and Westlaw at home. And I think every one of my colleagues has had many law clerks who are parents. The law clerks meet every Thursday for happy hour. And we go out on the patio and join them sometimes. Their happy hour is filled with children of the clerks.

KATHERINE BAICKER: So you've mentioned these are some aspects of the way the work is done that have changed. But you've mentioned that the collegiality of the court has not changed over these many years. Your confirmation hearings looked very different from the confirmation hearings that we see today. Do you think that the confirmation process is in need of reform? And if so, how do we move past finger-pointing to real changes in the procedures?

RUTH BADER GINSBURG: I was the beneficiary of a true bipartisan spirit that was prevailing in Congress and so was my colleague Stephen Breyer who was appointed in 1994. Senator Biden chaired the Senate Judiciary Committee, but my biggest supporter on the committee was Orrin Hatch.

My White House handlers in preparation for the hearing would ask me questions like, you were general counsel to the ACLU from 1973 to 1980. During that time, the ACLU adopted this or that resolution, how did you vote? And I said stop. Just stop because there's nothing that you can do that would lead me to be critical of the ACLU.

And at the hearing, not a single senator asked about my ACLU connection, although I was one of four general counsel. I was on the board. I co-founded the ACLU Women's Rights Project. Not one question. That wouldn't happen today. There were only three negative votes.

Things have changed. So it's-- and it shows up on both sides of the aisle. My now chief, Chief Justice Roberts, had all the qualifications one could want in a Supreme Court Justice-- a number of negative votes from Democrats. And my excellent colleagues, Sotomayor and Kagan, again, multiple negative votes. Divisions along party lines.

I don't know what it will take, but we really should get back to the way it was when people were examining the qualifications of someone to be a judge rather than trying to guess how they would vote on contentious cases. Maybe there will be great states people on both sides of the aisle who will say enough of this nonsense. Let's do the work that we were elected to do for all of the people of the United States. I hope I will see that restoration in my lifetime.

KATHERINE BAICKER: Hear, hear. So following up on the idea of the things that have changed in society and the evolution of the law in response to that, there are many constitutional provisions that focus on the power of government but there really aren't any that focus on the power of corporations. And that's changed a lot over the centuries.

People think about the power of corporations in anti-trust and pricing, or about in technology, privacy, and the flow of information. The courts have had to weigh in on donations to political campaigns and on imposition of religious beliefs. Has the law-- is the law as it stands able to deal with issues of corporations and their power? Oh, I see. These are my audience questions, which is a cue that we're almost done here.

With the power of corporations-- or is there a need for the law to adjust to the modern reality of the way we all live our lives?

RUTH BADER GINSBURG: Well, I think that the law can adjust very well. I mean, it has. You mentioned anti-trust. What was considered in restraint of trade at the end of the 19th century is not necessarily the same as it is today. So these are laws that were meant to govern society as it changes.

Do I think that the law-- yes, certainly the law and the court decisions can deal with the problems of large corporations. One case that you may have thought of that does empower corporations is Citizens United and campaign spending. But Justice John Paul Stevens wrote a wonderful dissent in that case which I joined, which I hope will someday be the accepted view of the controls that are appropriately put on campaign spending.

KATHERINE BAICKER: Speaking of your dissents, you have been clearly very well-known for your powerful dissents and have become a cultural icon beyond any other justice that I'm aware of in movies, The Notorious RBG, in opera. I have-- I can't help but be a prop comic for a moment. I have here a Ruth Bader Ginsburg bobble-head.

I might be wearing Ruth Bader Ginsburg socks.

How has rising to the status of cultural icon affected your view of your role in society not just on the court?

RUTH BADER GINSBURG: The Notorious RBG was created by a second-year student at New York University Law School. She got the idea when the court decided the Shelby County case that declared invalid a key portion of the Voting Rights Act of 1965. The act required states, sometimes counties, sometimes municipalities that in the bad old days had kept African-Americans from voting-- those units could not enact voting legislation unless it was precleared either with the Department of Justice Civil Rights Division or a three judge district court in the District of Columbia.

That preclearance system was working very well keeping lots of laws off the books-- laws that were designed to keep people from African-American communities, Hispanic communities, from access to the polls. But the court said times have changed since 1965. So some areas that had discriminated in the past are no longer discriminating. Therefore, the list-- the no good list of '65 is outdated. Congress will have to do it again.

Well, think of the practicality of that position. What member of Congress is going to stand up and say, my district is still discriminating so keep us on the bad list?

In fact, there was a way out. It was built into the legislation. It was a bailout. If you had had a clean record for X number of years, you could bail out from the coverage. Well, this student recognizing that the Shelby County decision was going to revive these efforts to keep African-Americans from the polls-- she was at first very angry.

And then she thought to herself, anger is not a useful emotion. It doesn't get you any place. I want to do something positive. So she took the summary of my dissent that I read from the bench and she put it on this blog. And she quoted The Notorious RBG after the famous rapper Notorious BIG because she knew that the two of us had one thing in common.

What was it? We were both born and bred in Brooklyn, New York. Anyway from there it took out into the stratosphere.

But I think it's mostly because people wanted something positive, something hopeful. And so that's how The Notorious RBG was born. And I must say sometimes it can be a little overbearing when everyone wants to take my picture. Though, I'm 86 years old. But if I would go to, say, Macy's in Pentagon City, in the old days it was hard to find a salesperson.

“Yes, Ms. Ginsburg. Can I help you?”

KATHERINE BAICKER: I'm glad at least that problem has been solved.

Well, I would like to turn to some questions from the audience that have been submitted. And one is, has the current political climate affected your views on lifetime appointments?

RUTH BADER GINSBURG: Again, it's a hypothetical question because Article III, the Judiciary Article of the Constitution, says the judges-- not just Supreme Court judges, but all federal judges-- hold their office during good behavior, essentially for life. So I suppose I'm biased and prejudiced on that-- on that subject, having served 26 years. Much longer than the average tenure of Supreme Court justices.

And I think the US Supreme Court is the envy of high courts all over the world that have compulsory retirement ages, some beginning at 60, 65, 70, tops 75. So I think that, again, amending the Constitution to change it-- I don't think there'd be such a groundswell.

KATHERINE BAICKER: What about the election of state court judges? Do you think that that's functioning well or problematic?

RUTH BADER GINSBURG: I think popular election is a very bad way to select judges.

And judges campaigning for office, saying if you elect me, I'm going to be tough on crime. It's a spectacle. I don't know any other country in the world where judges are elected. One can understand the origin of people's distrust of the British judges, but we're long past that time. The direction is toward appointment rather than election. And New York had started with the Court of Appeals-- the top court. And movement is slow, but it is in the direction of appointing rather than electing judges.

I was given information some years ago about the fantastic amount of money that must be gathered to get a seat on the Supreme Court of Texas-- millions of dollars. I remember I was one of the hosts of a delegation from Russia visiting various states and one was Texas. When they heard about how much it costs to win a seat on the highest court of that state, they were just amazed.

KATHERINE BAICKER: Well, speaking of lifetime judicial ambitions, we have a question from 11-year-old Reagan Jackson who asks, were you always interested in being a US Supreme Court Justice? Was it a childhood aspiration?

RUTH BADER GINSBURG: In the ancient days when I went to law school, in 1956 to 1959, there were barely any women judges. In those years, of all the federal courts of appeals, only one had a woman. Shirley Hufstedler, who sat on the Ninth Circuit Court of Appeals. President Carter made her the first ever secretary of education. So then there were none.

But President Carter looked around and he said, I see these federal judges and they all look like me. And they are all white, they are all male. But that is not how the great United States looks. So I am going to appoint members of minority groups and women in numbers, not as one at a time curiosity. President Carter appointed over 25 women to district court judgeships, trial court judgeships, and 11 to courts of appeals. And I was one of the lucky 11.

Then President Reagan comes along and he's not going to be outdone by President Carter. He's determined to appoint the first woman to the Supreme Court. He makes a nationwide search. He came up with a wonderful choice in Justice Sandra Day O'Connor. No president has ever gone back to the way it was. So Carter deserves great credit for changing the complexion of the US judiciary.

But there I am in law school graduating in 1959, far from thinking about any judgeship. What I want is a job in the law-- any job---in the law. There was no Title VII, no anti-discrimination laws. People were upfront about wanting no lady lawyers. There were a few firms that were willing to risk taking a chance on a woman. There was no firm in the entire city of New York who would take a chance on a mother. And my daughter was four years old when I graduated from law school.

Women were in those days less than 3% of the lawyers in the country. So it would have been an unrealistic expectation to think that I would someday be a judge. Women of my generation wanted a job in the law. Justice O'Connor is typical. She was very high in her class at Stanford Law School. No one offered her a job as a lawyer. She was asked if she could type. Maybe she could be a legal secretary.

So what did she do? She went to a county attorney and said, I will work for you without pay for four months. And then if you think I'm worth it, you can put me on the payroll. Well, of course, she was far and away the best young lawyer in the office, so she was put on the payroll.

It was getting that first job that was powerfully hard. Once the woman got it, she performed at least as well as a man. And so the second job was not the same hurdle. But getting your foot in the door, that was the challenge. I never thought about becoming a judge until Carter took office and made it his goal to appoint women in numbers. And then I began to think that might be a nice life for me.

KATHERINE BAICKER: Another question from the audience related is, do you see similarities in the fight for gender equity and ongoing battles for social equity on other dimensions? Are there issues that are specific for women of color? How does the fight for racial justice compare to what you've seen over the years?

RUTH BADER GINSBURG: Anti-discrimination enforcement spreads beyond the particular category. So my best example of that is a case called Ida Phillips against Martin Marietta Company. Ida Phillips was a woman with pre-school children. Martin Marietta had a policy-- we hire no women with pre-school children. The company's defense-- how can we discriminate against women? Women are 80% of our workforce. But there's a certain kind of woman who can't work there-- the mother of pre-school children.

That case was taken to the US Supreme Court by the NAACP Inc Fund. Ida Phillips was a white woman, but the NAACP had the foresight to see how important eliminating that barrier was for women of color. So in the anti-discrimination field, I think decisions on gender-based discrimination can be useful in race discrimination cases. And certainly, the race discrimination cases were very important in opening up opportunities for women.

KATHERINE BAICKER: So perhaps a good question to wrap up with is, do you have any words of encouragement for those fighting for democracy and equal rights around the world who may be disheartened by setbacks and the personal risks and challenges they face?

RUTH BADER GINSBURG: But they can be heartened by the number of similar people who think as they do. It's very hard to do anything as a loner. But if you get together with like-minded people, you can be a force for change. And if you look at things over the long haul, we have come a long way from how it once was.

There was a woman who was in a prominent Supreme Court case called Loving against Virginia. This was a challenge to Virginia's miscegenation law. Mildred Loving said, in my long life, I have seen great changes. I feel that way too. And although we haven't reached nirvana, we have come a considerable distance from the days when women couldn't do that or this simply because they were female.

KATHERINE BAICKER: And a follow-up question from the audience is, what keeps you optimistic? Is that how you view the future for our country and around the world?

RUTH BADER GINSBURG: What keeps me optimistic, as I said, is the changes that I have seen. I mean, even think of race discrimination. World War II we were fighting a war against the most odious race discrimination. And yet, our own troops until the very end of the war were rigidly separated by race. I think World War II is what hastened the decision in Brown v. Board of Education. So I have seen enormous changes and that's what makes me optimistic for the future.

KATHERINE BAICKER: And as you look back on the cases you have opined on, what is your favorite dissent you have written?

RUTH BADER GINSBURG: It's like asking which of my four grandchildren and two step-grandchildren is--my favorite. Well, one case that gave me enormous satisfaction was Lilly Ledbetter's case.

So Lilly Ledbetter worked at a Goodyear Tire plant. She was an area manager. She was the first woman to be hired at the Gadsden, Alabama plant, and to be an area manager. And one day someone puts a slip of paper in her mailbox with a series of numbers. Lilly recognized immediately what they were. They were the pay of all the other area managers. And the young man she had just trained for the job was earning more than she was. So she said, I've had it, I'm going to sue.

And she sued under Title VII, our anti-discrimination in employment law. She won a sizable jury verdict. Her case comes to the US Supreme Court and the court decides, Lilly, you sued too late. This law, Title VII, says you must complain within 180 days of the discriminatory incident and you are complaining years and years after you were first the victim of gender, race discrimination. So you sued too late.

My theory in dissent was that every paycheck she received renewed the discrimination. So she had 180 days.

But what I tried to explain is that the first woman in a job that has been up till then held only by men does not want to be seen as a troublemaker. She doesn't want to rock the boat. So even if she suspects that she's being paid less, she doesn't complain. Her employer didn't give out pay figures so maybe she didn't know.

But suppose she had sued early on. The defense no doubt would have been Lilly just doesn't do the job as well as the men. Then year after year she gets good performance ratings, so that defense is no longer available. She has a winnable case. But the court said she sued too late. So the tag line of my dissent in Lilly Ledbetter's case was the ball is now in Congress's court to correct the error into which my colleagues have fallen.

And there was a coalition-- people on both sides of the aisle-- overwhelming vote to pass the so-called Lilly Ledbetter Fair Pay Act, which just adopts the paycheck rule. You have 180 days from the latest paycheck. It was the first piece of legislation that President Obama signed when he became president.

KATHERINE BAICKER: Well, it has been an honor and an education to be able to sit here with you. And I would like to ask the audience to thank the Justice for sharing this time with us today.