Justice Ruth Bader Ginsburg descended the grand staircase of a Colonial mansion in a blue pantsuit and shawl. It was the summer of 2018, and the justice had invited my wife, Lauren, and me to spend the weekend with her at the Glimmerglass opera festival in Cooperstown, New York. She greeted us warmly, and we piled into an SUV to see a lecture by Margaret Atwood.

In the question and answer session, Atwood argued there had been three explosions of feminism in the 20th century. The first culminated in the passage of the 19th Amendment. The second, the women’s movement of the 1960s and ’70s, was a reaction to the oppression epitomized by the 1950s, when suburban women were effectively locked in a house with four kids and no employment prospects. And the third, the #MeToo movement, was a backlash against the harassment women experienced at the hands of predators such as Harvey Weinstein. Atwood said she believed that, just as the feminist movement of the 1960s and ’70s had provoked the Reagan revolution that led her to imagine The Handmaid’s Tale, the #MeToo movement would provoke a backlash of its own that would set back women’s progress and equality.

After the lecture, Ginsburg cordially greeted Atwood in the greenroom, but expressed a different view about the future of #MeToo. “I don’t think there will be a successful backlash this time,” she said.

“I think there will be,” Atwood countered. “We’re already seeing it with Hillary Clinton. I wanted to say in the talk that’s the first time we’ve seen this 17th-century talk of the female witch character.”

Ginsburg was more optimistic. “Women now represent over 50% of law school classes and of undergraduates as well,” she replied. “As women are represented in numerical majorities in positions of authority, enough of them will care about their sisters—they will not allow the progress to be reversed.”

At dinner on the grounds of the opera house the next evening, Justice Ginsburg offered her thoughts about due process and the #MeToo movement, and said she was “skeptically hopeful” about the future of the Supreme Court in the wake of the retirement of Justice Anthony Kennedy.

Jeffrey Rosen: If Margaret Atwood was right to say we’re now in a third feminist movement, what legal victories should follow from it?

Ruth Bader Ginsburg: One is giving a woman an opportunity while raising children to have a flexible schedule at work. I was surprised that law firms haven’t been as receptive to flex time as they should be, because now an associate has a whole law library at her fingertips. She could work at home, something that wasn’t possible in earlier years. A flexible schedule is facilitating for both men and women. We have, in D.C., the first person to be [made partner while] given flexible time at a law firm. It was at Arnold & Porter, and the woman is Brooksley Born. When her second child was born, she elected to have a three-day schedule. She was told, “That’s okay, but you’ll never make partner.” It turned out that she produced more in three days than the average associate produced in a full week, so she became [one of] the first [female] partner[s].

What other legal changes are necessary to secure full equality for women?

The two big areas are unconscious bias and what is called work-life balance. If we could fix those two, we would see women all over doing everything. Unconscious bias and facilitating a work life and a family life.

Do you think those are the goals of the #MeToo movement?

I can’t speak for young women. I think #MeToo was not possible in an earlier time. One of the women who started it, Ashley Judd, said she gave her story [to Variety] two years—two years—before [the New York Times] finally published it. When they did, it had a ripple effect.

What will the legal dimensions of the #MeToo movement be?

What Margaret Atwood said about #MeToo was that you need a structure for making complaints, and you need to build fairness into the system. Many of the women have horrendous stories to tell about their harassment. Then there are cases where the man who is accused doesn’t get a fair hearing. Allegations are made; he’s assumed to be a bad actor. The person attacked has a right to have his story heard, just as the accuser has her story heard. Fairness is an important part of this—fairness to the person who is accused.

And how can we best ensure fairness to the accuser and accused?

Well, the ones that have been written into some college codes. Both should have a right to an impartial decider. [Workplaces also need] fair procedures, representation, and an impartial decider. Margaret Atwood spoke about having an independent decision-maker from outside the institution.

How would that work? Would workplaces and universities create separate courts or review boards to hear the cases?

Yes, and they might develop something like an arbitration association’s procedures, where there’s an independent adjudicator.

Based on your observations of feminist movements in the ’60s and ’70s, do you think #MeToo will have a beginning, middle, and end?

I think of the spirit of my granddaughter and her friends. She wants to end what she sees as injustice to women, and her particular interest is reproductive services for nonaffluent women. It reminds me of the spirit among women in the ’70s. The backlash, as Margaret said yesterday, too, never takes us all the way back. There are still advances, a way forward, and I do think the more women there are in positions of authority, the less likely that setbacks will occur.

How do you think Congress and the states might react if Roe v. Wade were overturned, given the strong support for early-term choice throughout the country?

Many states will never go back to the way it was. And then it will become even more pronounced, to put it bluntly: Poor women must breed, affluent women can choose.

Justice Kennedy has retired. Are you now concerned that Roe might be overturned?

Roe has pretty strong precedential weight by now. In Casey, the issue was squarely before the Court. The Court said, No, we will not overrule Roe. We have some hopeful examples—the Court refused to overturn Miranda. Just last term, in dissent in the sales tax cases, the chief said he thinks those old decisions were wrong, but they have been on the books for years, they survived one reexamination, so we should adhere to them and let the legislature make the change, if it so wills. We have no crystal ball, but a second direct confrontation may be ahead. If so, the odds, I think, are in favor of it not being successful.

What about the other big precedents? Affirmative action, for example?

It depends upon the area you have in mind. I think in education, you don’t need affirmative action for women; they’re a majority of university students. One way or another, I think schools will find a way of providing access to minority-group members disabled because their education up to the time of university has been well below par. That was brought home to me when I was teaching at Rutgers. In the year of the riots, the school decided to have an aggressive affirmative action program. As one component, any minority student could get one-on-one tutoring by a faculty member. My student scored in the 300s on the LSAT when the top score was 800. He was very bright. No one had ever taught him how to read and write well; it was just that basic. By the end of the year, he was on law review.

Are there any precedents you are concerned about surviving?

Who knows what the Court’s membership will be? It’s no secret that the justice most likely to join the “liberal justices,” after Justice O’Connor left us, was Justice Kennedy.

Are you optimistic or pessimistic about the future of the Court now that Justice Kennedy has retired?

I would say I’m skeptically hopeful.

What message would you give to progressives and liberals concerned the sky might fall?

As I told you, good precedent built up over years should survive challenge. And how the chief justice would want his court to be perceived when history is told years later.

As we talk through all these areas, gender equality, affirmative action, I’m feeling reassured. Is there any area that liberals and civil libertarians should be concerned about not getting redress in the courts?

A big area on which the Court has spoken, decisions I hope will be overturned, relates to money and elections. Citizens United is the lead precedent. More and more we see how huge spending on elections is corrupting our democracy. The same thing holds for partisan gerrymandering. It will be interesting to see what the Court does with that issue next time.

Adapted from Conversations with RBG: Ruth Bader Ginsburg on Life, Love, Liberty, and Law by Jeffrey Rosen. Published by Henry Holt and Company November 5, 2019. Copyright © 2019 by Jeffrey Rosen. All rights reserved.

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