Litigation


A Supreme Court Clerk Remembers Justice Ruth Bader Ginsburg

By Anna-Rose Mathieson

“So.” Justice Ruth Bader Ginsburg peered at me intently. She spoke slowly, methodically, choosing each word carefully. “Tell me about … fencing.” It was not the question I’d expected. I’d spent weeks preparing for my clerkship interview, pouring over Supreme Court opinions and anything I could get my hands on about Justice Ginsburg’s jurisprudential approach. “I … fenced épée in college. It was fun, but I wasn’t particularly good.…”

I tried hard not to end my sentences with a vocal uptick that would betray my uncertainty about whether a world-class intellect and hero of the women’s rights movement really wanted to hear about my clumsy attempts at intercollegiate athletics. But she soon explained that one of her former clerks had been an Olympic fencer, and she spoke with such warmth about that clerk that I quickly felt at ease. Well, relatively. I was still pretty stressed. But it turned out, I needed not be. The rest of the interview was casual, focusing on Shakespeare and travel. I can’t say it was like chatting with an old friend — there were often long gaps of silence that might be awkward in some contexts, as the Justice searched for the right words to convey the idea she had already fully formed in her mind. But I was prepared for her staccato speech, warned by former clerks before my interview. And by the time I got home, I had a voicemail message from Justice Ginsburg offering me a clerkship for the 2005 Term.

The year was everything I expected — plus everything I could never have expected. It was enriching, exhausting, enlightening, and an intense master class in thinking and writing with some of the greatest minds in the world. As I mourn Justice Ginsburg’s passing, and think back on my time serving as her clerk, a few memories stand out brightly. She pushed herself and everyone around her to do their best. Justice Ginsburg was hands-down the hardest worker I’ve met in my life, and I’ve been around more than a few type-A personalities. It was as much as my co-clerks and I could do to stay on top of a quarter of the Court’s extensive caseload, but she kept on top of it all. She was always aware of the big picture, but nothing was too small to escape her notice. She knew the details of all of the cases for that Term, and she would often recall specific precedents written decades earlier that our extensive research had failed to unearth.

Every draft that we gave her came back heavily marked up, with detailed instructions on how to fix the problems. Typos in a draft would be carefully circled, with analysis of the mistake noted in the margin in her light pencil scrawl. She even circled typos in briefs filed by the parties, penciling corrections in her bench copy even though no one would ever see or benefit from her notes. If you’ve ever wondered whether a judge noticed that typo you found two minutes after filing your brief … the answer would certainly be yes if Justice Ginsburg were involved. She didn’t hedge or try to soften her criticism while correcting our work. There were no “nice job!” notes routinely added to the start of her edits on our draft opinions. She trusted that we were capable of high-level work, and saw no reason to compliment us for merely doing the job we were hired to do. Once, one of the other clerks was assigned the daunting task of trying to write a speech for the Justice that she wanted to be “humorous.” This clerk happened to be legitimately funny, and labored quite hard to craft a speech about legal topics that contained appropriate, non-offensive humor he thought the Justice could pull off. The Justice gave the draft back to him with a single note in the top corner. “Not funny. REWRITE.”

Yet she managed to temper her drive for perfection with a deep level of empathy and understanding. When we arrived at our desks in the mornings, we would often find voicemails that she’d left us at 2 a.m., 3 a.m., or even 4 a.m. with guidance about an opinion we were drafting — but she didn’t expect us to be keeping the same hours. Once I did pick up a late-night call and she sounded quite surprised. She quickly explained the changes I should make to the opinion I was drafting for her, and then suggested I go home and get some sleep. She also went out of her way to foster a collegial atmosphere despite the stresses of the job. She hosted frequent tea parties for her chambers, always with a freshly-baked cake from her husband Marty. (Marty, a fellow lawyer and the love of her life, was an all-star chef — when the Justice had us over for dinner, Marty cooked a four-course dinner entirely from scratch, down to crusty homemade baguettes.) During the tea parties, we’d sit around the small round table in her office. She’d ask about our lives, and tell us stories about her passion, opera. And, of course, we’d all savor the tasty treats. She had an endearing love for baked goods. Once, my husband baked pumpkin muffins for chambers. An hour after settling in, the Justice summoned me to her office. She used an intercom system that made our phones buzz loudly and flash with bright red lights when she wanted to speak to a specific clerk. It was generally an anxiety-producing event — most of the time, she’d “buzz” us when she was ready to gently but expertly decimate the last draft or memo we had sent her. So when the intercom buzzed for me, I grabbed my notepad and went in with heart pounding.

“These,” she said, holding aloft a half-eaten pumpkin muffin and staring at me intently, “are scrumptious.” Then she picked up her pencil and resumed editing the draft in front of her, the conversation over. Even with all the hard work, she let herself — and her clerks — take joy in things outside of the Court. She took everyone in chambers to several operas and other cultural events, and organized a musical performance with top-tier opera singers for the entire staff of the Supreme Court. She also regularly participated in the Washington Shakespeare Theatre Company’s annual mock trial fundraiser. The term I clerked, she was the presiding justice in the trial of Iago, the villain from Othello. She took this task extremely seriously. She had me prepare like she would have me prepare for a regular Supreme Court case, drafting a bench memo and a list of detailed questions to ask the advocates. True to form, of all the issues I flagged, the one she focused on at the outset of questioning was the jurisdiction of the court to try Iago. It was a thrill being whisked around by Secret Service agents on these outings, through the secret underground tunnel from the Supreme Court to the Library of Congress or up the back stairs at the Kennedy Center to the Justice’s box. But back then fewer people recognized her. We got some looks because of the men in black with ear wires accompanying us, but the “Notorious RBG” phenomenon didn’t start until a few years later.

There were signs of her coming celebrity elevation even during that 2005 Term, though. It was a year of transition for the Court. Chief Justice Rehnquist passed away and Justice O’Connor retired, and Chief Justice Roberts and Justice Alito were appointed to replace them. Justice Ginsburg had been close with the old Chief and mourned his passing, but the retirement of Justice O’Connor had perhaps a larger effect. Justice Ginsburg had always been a fierce advocate of equality for women, yet midway through the term she became the only woman on the Supreme Court. Not long after that, she decided to focus one of her upcoming speeches on how men held eight out of nine Supreme Court seats. I’d known about the Justice’s career as a pathmarking ACLU litigator, of course. But I hadn’t seen much of that during my clerkship until she suddenly found herself the Court’s sole woman. She’d written some blockbuster decisions on issues of equality in prior terms, but much of the Court’s work involves relatively dry procedural topics. In general that suited her just fine — this was a woman who wrote an entire book on Swedish civil procedure, after all. But she knew that the moment called for her to speak out. The Court had been heading in the right direction on equality, going from zero women in 1980 to two women in 1993. It was far from perfect — lawyers arguing before the Court had confused her and Justice O’Connor so often that a friend bought them t-shirts which read “I’m Ruth, she’s Sandra” and “I’m Sandra, she’s Ruth.” But at least the Court had been improving after being exclusively male for nearly two centuries. But rather than continuing that forward progress, the Court reverted back to just one woman in 2006. So Justice Ginsburg got to work (and put her clerks to work) speaking and writing about the need for equality on the Court and in society. And within a few years the country began to notice, and a quiet, scholarly older woman became a pop culture icon. The attention didn’t change her, but it did amuse her. She was pleased that people were listening, and that she could help advance equality and pursue justice through fiery dissents and speeches as well as majority opinions. I can vividly remember the sparkle in her eyes as she explained with quietly understated passion about how Congress had changed the law in response to one of her dissents. I am so proud to have worked for her, and proud of everything she accomplished. I miss her terribly.

Anna-Rose Mathieson is a partner with the California Appellate Law Group in San Francisco, where she handles cases in California appellate courts, the Ninth Circuit, and the Supreme Court.

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