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Justice Ruth Bader Ginsburg on the evolution of the federal judiciary and becoming “RBG”

Across more than six decades as an attorney, law professor, federal judge and Supreme Court Justice, the Honorable Ruth Bader Ginsburg has borne witness to a score of sweeping changes that have transformed the landscape of federal jurisprudence.

In a recent two-part interview with Thomson Reuters Legal Current, Justice Ginsburg discusses some of these changes, as well as her role in helping influence or shape many of them. (You can hear Part 1 and Part 2 of the interviews here.)

When Justice Ginsburg began her work as general counsel for the Women’s Rights Project of the American Civil Liberty Union, the Supreme Court was still more than a decade away from seating its first female Justice, Sandra Day O’Connor, and had not yet heard many of the gender discrimination cases that have come to be regarded as modern landmarks. As an attorney in the 1970s, she argued before the Court in favor of striking down state laws that excluded women from jury duty, as well as numerous other cases that extended the Equal Protection Clause of the U.S. Constitution to protect the rights of women and other groups.

“The most heartening change in the legal profession has been its receptivity of all the people who make up ‘We The People.’”

– Justice Ruth Bader Ginsburg

Looking back on her career, Justice Ginsburg says that the greater inclusion and receptivity that has spread across the legal profession is one of the most significant changes that she has witnessed in the law. For example, within the Court’s current term “for the first time in the history of the Supreme Court, there are more women law clerks than men,” she says.

Evolution of class actions & arbitration

Sitting down for the interview with her former Harvard Law School classmate, Prof. Arthur Miller of New York University Law School, Justice Ginsburg also talks about other changes she has witnessed across the federal judiciary. Regarding class action lawsuits, Prof. Miller points out how the evolution of Rule 23 of the Federal Rules of Civil Procedure, which covers class actions, and the passage of the Class Action Fairness Act of 2005 have expanded the use of class actions and other forms of group litigation. Indeed, as a judge on the U.S. Court of Appeals and a professor teaching civil procedure prior to her appointment to the Supreme Court, Justice Ginsburg has been at the forefront of the growth of class actions over the past few decades.

The two-part interview with Justice Ruth Bader Ginsburg can be heard in its entirety here, as part of a series of interviews conducted by Prof. Arthur Miller with leading legal scholars and thought leaders exploring the issues and challenges facing the federal judiciary. Prof. Miller is a founding author of Federal Practice and Procedure, which this year marks its 50th year of publication.

While class actions have been a powerful legal avenue for addressing employment discrimination, defective consumer products, and other plaintiff claims, Justice Ginsburg expresses concern that many class actions are now being filed without the best interests of the plaintiffs in mind. “The problem with [many class action] cases is they’re not client-instituted,” she explains. “They’re often lawyers who see a good issue and then enlist clients to become representatives.”

Prof. Arthur Miller (left) interviewed Justice Ruth Bader Ginsburg about what she’s seen during her legal career.

With many potential class actions not being addressed through arbitration, Justice Ginsburg responds to Prof. Miller’s sentiment that arbitration “is taking a great deal of cases away from the courts.” She believes that the original intent of the Federal Arbitration Act was good, giving merchants and other businesses a less expensive means of settling disputes; but now, she feels that “arbitration has gone riot” in the way it is being extensively used in other types of agreements, such as employment agreements and consumer contracts used by many companies simply to prevent aggrieved parties from filing lawsuits. “Arbitration is not meant for the kinds of cases to which it’s been extended,” says Ginsburg.

Optimism about the future

Despite these and other upheavals in the legal system, Justice Ginsburg remains unabashedly optimistic. “In my long life, I’ve seen alternating good and bad periods in our history,” she notes. “There have been great strides forward, and there have been some steps backwards. [But] the forward movement has been dominant,” she says. “I’m optimistic we’re going to continue our course. As Martin Luther King said, ‘The arc of the moral universe is long but bends towards justice.’”

Prof. Miller also asked Justice Ginsburg about the “Notorious RBG” phenomenon that has made the Justice the popular subject of Internet memes, T-shirts, bobble head dolls, and even an Academy Award-winning documentary about her life. Justice Ginsburg takes it all in stride with her usual grace and a touch of bemused wonder.

“I’m 86 years old and everyone wants to take their picture with me,” she marvels. “It’s amazing.”

This article was written by Elizabeth Beastrom, senior vice president of Global Print for Thomson Reuters.

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