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The Canberra Times
The Canberra Times
National
Amy Martin

The Notorious RBG: A life spent with Ruth Bader Ginsburg

The life and legacy of Ruth Bader Ginsburg will be in the spotlight at the Canberra Writers Festival. Picture: Douglas Lima

The same day the United States supreme court overturned Roe v Wade, a 1993 speech made by Ruth Bader Ginsburg went viral.

Given at her Supreme Court confirmation hearings in 1993, its reappearance almost 30 years later was prompted by the overturning of the 1973 decision, which allowed women the right to a medical termination. For many, the footage of Ginsburg calmly but firmly stating the legal case in defence of her unflinching support of abortion rights, summed up what they themselves felt.

"This is something central to a woman's life, to her dignity. It's a decision that she must make for herself," the late-Supreme Court justice said in the clip.

"And when government controls that decision for her, she's being treated as less than a fully adult human responsible for her own choices."

Ruth Bader Ginsburg is sworn in as associate justice of the supreme court of the United States in 1993. President Clinton stands behind her with her husband Martin Ginsburg. Picture: Shutterstock

The overturn of Roe v Wade debate has become intertwined with Ginsburg and what she stood for. Even here in Australia, and specifically at the Canberra Writers Festival next month, the Roe decision is expected to come up when the late-justice's colleague Amanda Tyler appears to discuss their final book together.

But, since Roe was overturned, Ginsburg has been used on both sides of the argument. While protests against the supreme court decision have seen placards with her face and words line the streets in the US and internationally, others have pointed out that even though Ginsburg was undoubtedly in support of the right to an abortion, there was a time when she spoke out against Roe v Wade from a Constitutional standpoint.

The Roe decision - which happened in response to a Texan abortion ban - was one that Ginsburg labelled as "breathtaking", in that it happened at a time when other similar cases were handled in a more restrained way. In fact, Ginsburg was regularly quoted as saying that Roe might have harmed the evolution of abortion rights by going too far, too fast. She also felt Roe wasn't about a woman's choice, but rather the doctor's freedom to practice.

"A less-encompassing Roe, one that merely struck down the extreme Texas law and went no further on that day, might have served to reduce rather than to fuel controversy," she said in December, 1992.

However, in the same speech that went viral last month, Ginsburg mentions another case - 1992's Planned Parenthood v Casey. It was a case that not only reaffirmed Roe but also, according to Ginsburg in her confirmation hearing one year later, took the physician out of the equation.

"Roe features, along with the right of the woman, the right of the doctor to freely exercise his profession," she said at the time.

"The Casey decision, at least the opinion of three of the justices, in that case, makes it very clear that the woman is central to this. She is now standing alone. This is her right. It is not her right in combination with her consulting physician.

Justice, Justice Thou Shalt Pursue, by Ruth Bader Ginsburg and Amanda L. Tyler. University of California Press. $44.95.

"The cases essentially pose the question: Who decides; is it the state or the individual? In Roe, the answer comes out: the individual, in consultation with her physician. We see in the physician something of a big brother figure next to the woman. The [Casey] decision, whatever else might be said about it, acknowledges that the woman decides."

Now almost three decades from this moment, and two years on from Ginsburg's death, women in America now have fewer rights when it comes to abortions. So it does beg the question of what Ginsburg would think about the state of the US now - especially since everyone seems to be throwing her name into the debate.

Tyler looks towards Ginsburg's legacy when she considers this. The University of California Berkeley professor got her start as the late-supreme justice's law clerk - "the dream job" - and over the years, stayed in touch, before they co-authored the book Justice, Justice Thou Shalt Pursue: A Life's Work Fighting For A More Perfect Union.

"I can't speak for her, obviously, but what I can say is, I think she understood in real time while she was still alive, that a lot of the things for which she had fought were in jeopardy, were under siege," Tyler says.

"Now, where we are today ... what I can extract from what she taught me and what she did in her own career, are a few lessons. The first is you have to play the long game. She lost cases in the 1970s that she would have wanted to win, including a case about equality of educational opportunities at state-run institutions. That case, she winds up 20 years later, overruling when she writes for the court in the Virginia Military Institute decision.

"So she was always somebody to play the long game. And yes, you're going to confront setbacks, but quitting is not an option. You just have to roll up your sleeves and keep fighting for what you believe in."

Justice, Justice Thou Shalt Pursue - which was released the year after Ginsburg's death - is a highlight of this year's Canberra Writers Festival, with Tyler travelling to the capital for an in-conversation event with Fran Kelly.

The book itself is a collection of Ginsburg's stances on some of the most important opinions that the judge faced in her career, as well as sections from the first annual Herma Hill Kay Memorial Lecture the duo delivered in 2019.

Amanda Tyler and Ruth Bader Ginsurg at the Herma Hill Kay Memorial Lecture. Picture: Getty Images

And in fact, it was that memorial lecture we have to thank for the justice's final book.

Ginsburg's friend and colleague, and the first female dean of the University of California Berkeley law school, Kay had written a book before her death in 2017. It detailed the lives of the first American women law professors, and specifically, the handful of those who came before Kay and Ginsburg. And while no publisher would take it while Kay was alive, Ginsburg and a handful of others were still trying to get it published posthumously.

So, during Ginsburg visit to California for the Herma Hill Kay Memorial Lecture - and while she was battling her final bout of cancer - she made a deal with the University of California Press. She would give them a book exclusively - using the memorial's in-conversation with Tyler as a launching pad - if they agreed to publish Kay's book as well.

And the opinions chosen to stand alongside this in-conversation transcript? They're the ones that Ginsburg believed represented the cornerstone values that defined her career first as an advocate and then as a judge and justice - gender equality, reproductive freedom, equal opportunity, and voting rights.

Cases such as Moritz v Commissioner of Internal Revenue - the first in a series of gender discrimination cases Ginsburg litigated along with her husband Martin Ginsburg, and also a feature in the 2018 biopic On The Basis Of Sex.

Amanda Tyler started her career as Ruth Bader Ginsburg's law clerk. Picture: Supplied

The case centred around Charles E. Moritz, who in 1972 was looking after his elderly mother. However, because he had never married and therefore was neither divorced nor widowed, he was deemed ineligible for a tax deduction that he would have received if he was a woman in the same position.

And then there was the case of United States v Virginia - a case that took on the Virginia Military Institute for excluding female applicants, to which Ginsburg asked the court to decide "whether the Commonwealth can constitutionally deny to women who have the will and capacity, the training and attendant opportunity that VMI uniquely affords".

"If someone read nothing else that Justice Ginsburg had written as a supreme court justice, [Justice, Justice Thou Shalt Pursue] are the opinions she would want them to read. These are sort of emblematic of her legacy as she saw it," Tyler says.

"That opened up a series of really interesting and fun conversations with her about how, as she was at the end of her life and was reflecting on that life, she wanted to be remembered.

"When you look at the opinions she chose - and she chose them, she was very clear from the beginning, 'These are the opinions I want'.

"Over the course of the months of working on the book, I would go back to her and say, 'Hey, how about this one? This is one of my favourites'. And she'd say, 'Oh, that's an opinion. But now, these are the ones we're going to include'."

The life and legacy of Ruth Bader Ginsburg will be in the spotlight at the Canberra Writers Festival. Picture: Getty Images

Having worked closely with Ginsburg her entire career, Tyler has a unique insight into who she was away from the public eye. She was able to ask questions about the justice's cases - increasingly so as the pair worked on the book together - but she could also see who she was away from work.

Tyler got to see Ginsburg as the woman who valued family over anything else, and who loved the opera - so much that she would regularly take her law clerks, and was known to act out the productions ahead of time so that they didn't have to read the subtitles.

And during the opera performance? Tyler remembers how during every performance Ginsburg would lean over and whisper, "This is my favourite song" every time a new song would start.

"There were so many things that were life-affirming and uplifting about being in her presence. Going to the opera with her was the absolute best of the best of that," Tyler says.

"And she had a really healthy sense of balance. When you clerk for someone in your 20s and you're trying to figure out who you are, and you have her as a role model, it makes an impression on you in thinking about how to build your own life. So she did that for me."

The Canberra Writers Festival is on from August 10 to 14. Amanda Tyler will be in conversation with Fran Kelly in Her Last Words: The Inspiring Life and Legacy of Ruth Bader Ginsburg on August 13. For tickets go to canberrawritersfestival.com.au.

Justice, Justice Thou Shalt Pursue, by Ruth Bader Ginsburg and Amanda L. Tyler. University of California Press. $44.95.

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