[Eds. Note: With the tragic passing of feminist and progressive icon Ruth Bader Ginsburg, we highlight here a May 2018 conversation between Robert Scheer and the filmmakers of the excellent documentary on her life, “RBG.” ]
The documentary filmmakers discuss their film “RBG” on the life and career of Supreme Court Justice Ruth Bader Ginsburg. While Justice Ginsburg did not grant access to filmmakers Betsy West and Julie Cohen right away, eventually she allowed them an intimate look at her life and her career-long fight for equal rights. West and Cohen tell host Robert Scheer that Ginsburg has embraced her recent emergence as a pop culture icon because she believes it is an opportunity to reach a younger generation. They discuss Justice Ginsburg’s steely discipline and dedication to her work through her husband’s illness and death and even during her own battle with cancer. And the filmmakers tell Scheer that Ginsburg’s earlier legal career with ACLU involved a gradual but shrewd strategy to obtain equal rights for women under the law.
Photos by Christopher Ho.
Robert Scheer: Hi, this is Robert Scheer with another edition of Scheer Intelligence, where the intelligence comes from my guests. In this case, it’s–ha, I didn’t pick the title, they gave it to me. [Laughter] Betsy West–it’s an embarrassment. And Julie Cohen. And you probably know by now, they’ve made this incredible movie called RBG. It’s opening in May, going wide all over the country, it’s gotten rave reviews ever since Sundance. I’ve watched it several times, and I love it. And I want to stress, one reason I really love it, aside from, yes, it’s the great story of a fabulously committed and idealistic woman, and the times she grew up in, and her tremendous impact on the law. But what I love about it is it’s celebrating, not an older person for what they did in the past, but it’s actually getting us to know an 85-year-old woman who every–some people even said, well, why didn’t she, you know, step down, and Obama could have picked someone else. When you watch this movie, you’ll know why she shouldn’t have stepped down. She is, you know, as good as anyone ever gets. So why don’t we begin with that, and let’s just start with the fact that she’s 85.
Betty West: Well, thanks for that great intro, Robert. We’re glad that you appreciated this, because it really was very much in our mind that we’re doing a documentary about a living person who happens to be 85 years old now. And we wanted to give a complete picture of her, and not shy away from the fact that she is an older woman. The fact is that she is a legal giant for what she did in the 1970s, for equality, winning equality for women under the law. But she also now is going strong. And as an 85-year-old, she makes it a point to stay in shape. You’ve heard about her legendary workout routine, and we were lucky enough to film it. It’s inspiring; it’s something more than what Julie and I probably could have done, and has inspired us to up our routine a little bit. She, you know, lifts weights; she does planks; she does push-ups, the real push-ups.
RS: The push-ups, ah, really got me. [Laughter]
BW: The push-ups are pretty–it’s hard, the planks and the push-ups are equally–
RS: As filmmakers, and you are highly regarded, you know, filmmakers and so forth, were you surprised that you had the access that you had with this film?
Julie Cohen: Well you know, the access came very gradually. We started out interviewing former clients, people that she, colleagues from earlier in her career. We then moved ultimately to her letting us film some of her public appearances, then appearances that were a little bit more intimate. Then we moved on to, you know, close friends and family. And by the time she gave us the really special access into the gym, into her home, some time with family on vacation, or behind the scenes at the Washington National Opera, where she had a speaking role and let us film both the performance and rehearsals–you know, by the time she was giving us all that, we’d actually been working on the film for a couple of years. And I think it was our persistence and her appreciation of the seriousness of our endeavor that ultimately gave her the confidence to let us in pretty close. She’s a big fan of films and documentaries and the arts in general, so she appreciates the whole notion of filmmakers. And so she kind of trusted us to make the film as we thought would be good to make it.
RS: You know, this morning I just was glancing at some of the early reviews after Sundance, and I don’t know whether it was the Hollywood Reporter or someone–I mean, they’re all great, rave reviews. But it said something about it being a serious film, earnest and so forth. I thought it was a lot of fun.
BW: We tried, yeah, we tried to have fun with it.
RS: Well, and I was going to give, ha, the justice credit here, because she really lets her hair down. I mean, you know, in a very human way. You know, I once, I have to, full confession, I once interviewed Justice Douglas, William Douglas, in court, in the chambers and so forth. I found it really intimidating. I was there to talk to him about a book he had written, and he had you know, actually been involved in supporting politics in Southeast Asia, it’s a whole long story. But my goodness, I just found like, wow, where am I? I’m like–
BW: We had that experience too!
RS: Had an experience. And he kept it up, though, unfortunately. You know, he didn’t, you know, break it down so we could have fun or just relax. Clearly, she puts down the guard, or at least she does by the end of the film. She’s not pulling rank on you. Did she or not? I don’t know.
BW: No, she’s not. She doesn’t pull rank; on the other hand, she is intimidating. She’s a Supreme Court justice, and she is a formidable presence, despite her diminutive stature. She is intimidating. However, she is also very funny in a kind of sly, wry way we began to appreciate. And we saw that humor when we were on the road and filming these various talks. We saw her quips; she can be very funny. The best moment for us was after the interview in the Supreme Court, you know, in which we were talking about her legacy and a lot of serious issues. We then showed her some excerpts of several things to get her reaction, and at the end of that we showed her the Saturday Night Live Kate McKinnon impersonation of her. And that was an extraordinary moment, because as soon as she goes, “Is that Saturday Night Live?” Like, she wasn’t quite sure–as soon as she watched it, and Kate McKinnon is dancing–she just burst out laughing. It was quite wonderful.
RS: But it’s not a very good impersonation. [Laughter]
JC: Well, as her son points out, like, the reason, the fact that it’s not exactly a literal interpretation of Justice Ginsburg, is why it’s so funny.
BW: That’s why it’s funny.
RS: No, I’m all for that, but I’m saying, the person you introduced us to–now, maybe you got her at all her best moments–was a great surprise to me. You know, because she seemed to me, in the best sense of the word, to be accessible; to be, again, not taking yourself overly serious. And that one really had the sense that the issues she has raised and dealt with were the important thing, and not her reputation, her status. At least, that’s what the film conveys to me. Going back to when she was a college kid on up; she’s a person who did not seek the limelight, she was not bragging about anything, right? You stressed her shyness–
JC: Right, her husband did the bragging for her, and bragging about her, but she was not one to brag about herself or to, you know–she’s quiet, she’s reserved, she takes her work very seriously. But you know, after several decades in the public eye, she’s come to loosen up a bit. There’s a real, there’s a great sense of humor to her. She has some warmth, some sparkle, and some real kind of star power. And now that she’s become a rock star to the young millennials, you know, she gets a kick out of it.
RS: There’s one funny line where she’s being compared to the Notorious B.I.G. And she said well–and you ask, are you offended by this comparison. And she said, no, we’re both from Brooklyn.
JC: Right, she’s like, we have a lot in common! [Laughter]
BW: We have a lot–yeah! [Laughter] She loves that. I mean, her granddaughter talks about how she was initially surprised by her Notorious RBG persona, and how popular she was becoming with the younger generation. And her granddaughter says she kind of had a choice as to whether to recoil from it, or to embrace it. And clearly, she thinks it’s funny, and she thinks it’s an opportunity for her to reach a younger generation with her message.
RS: Well, the great thing–there are many great things about this documentary. But one of them is that you show that she comes from a real place. And you know, she has parents who probably were as bright, maybe her mother was as bright as she was, and she certainly indicates that–
BW: Yes. She adored her mother.
RS: But her mother didn’t go to college. I had a mother like that. You know, my mother didn’t even finish high school, and there was never any question in my mind that she was brighter than I was. And so you do have that sense in her fight for social justice; it’s not something that was grafted onto her. It’s something that’s in her bones. And obviously, you tell the whole story of how difficult it was for a woman to go from, to go to law school and then to go on. I mean, what, she was one of eight or ten–
JC: Nine out of, nine women in a class of 500, so. And you know, and not particularly welcomed, as women weren’t in the highest echelons of society at that time. The dean of Harvard Law School when she first entered drew together the nine women in the class, and had a nice dinner for them, and then said I’m going to go around the room and ask each of you, like, why you’re taking a place that could be held by a man. He said he meant that to kind of challenge them and get them to sharpen their legal arguments, but like, that’s a pretty rough statement to be hearing from the dean of an institution you’ve just entered, when you’re already probably a bit intimidated by it.
RS: Well, and you point out in the film, you don’t stress it, but you point out in the film that she did break through some glass ceiling very early on, and they just couldn’t deny her; she was too high-ranking, and came too well recommended. So she could have gone off to Wall Street. I mean, she could have gone into the corporate law–
BW: Well, she had some trouble initially. She graduated at the top of her class at Columbia. She was not getting the jobs at the top law firms in New York. They would just out-and-out say, we don’t accept women. So there was pushback; she then went on to clerk for a judge, and then she became a professor at Rutgers. That was where her students, in the midst of a growing women’s movement, came to her and said, look, what about a course about women and the law? About gender equity? And she started looking into it and found that there was very little casework on this. And not only that, that there was widespread discrimination with, really hundreds, thousands of laws that distinguished between the sexes and discriminated against women.
RS: I think the documentary is very good at reminding us what the world of law was like in the seventies, and the kinds of–I mean, the cases she took up, we have forgotten that there was such inequality in the workplace.
JC: People of varying generations have forgotten, or, you know, there are younger folks that just don’t know those facts at all, that don’t realize that just a few decades ago in this country, women didn’t have the same rights under law that men did. You could be denied a mortgage or a credit card if you were a woman, unless your husband cosigned for it. You weren’t considered an entity on your own. You could be fired for being pregnant. Your husband basically could rape you with impunity without there being any legal protection in the criminal codes. Like, it was a harsher world for women than it is now, as much as there’s still fighting to go, like, a lot has changed. And Ruth Bader Ginsburg is responsible for a good deal of that change.
RS: Let me ask you about Sandra Day O’Connor. Because she doesn’t get much play in your documentary, and I was wondering about that. You show that, you know, Scalia is her buddy, and they do things, and so forth. And here was the woman who preceded her. Was there tension there, or–?
JC: No, they had quite a warm relationship, and Justice Ginsburg has said that, you know, that Sandra Day O’Connor was quite happy to have Ruth Bader Ginsburg join her on the court as another woman, and sort of welcomed her in. We had other parts at some point, but you know, you’re always trying to hone down the story, and we hope that we gave her her due, visually and with a couple of mentions. Certainly Sandra Day O’Connor set a precedent as the first woman to be appointed to the Supreme Court, actually was appointed by a republican, Ronald Reagan. Ruth Bader Ginsburg followed in the following decade; when Sandra Day O’Connor retired, RBG became the sole woman for a while, and then under the Obama administration was joined by two more women justices. As Ruth Bader Ginsburg has said, you know, why couldn’t there be nine women justices? There were nine men for a number of centuries. People take that as a joke, but she may not mean it as a joke.
RS: No. Well, why should she mean it as a joke? You know, it’s a perfectly plausible statement. But it’s interesting, you also indicate her appointment was not that easy, by Bill Clinton; first of all, he had Mario Cuomo in mind; he wasn’t going for a woman at that point. And then she was considered too old. Right? How old was she then?
BW: She was 60 years old at the time. I mean, Bill Clinton, by his own admission in the documentary, tells us that he was casting about for someone because Mario Cuomo had turned him down. And it was Marty Ginsburg, Ruth Bader Ginsburg’s husband, who lobbied for her to be considered. And he talked to everyone he knew; he was a very well-connected lawyer himself, and he knew a lot of people; he was very gregarious, people really liked him. He made sure that her name came before President Clinton. Now, Clinton says, of course, yes, he was lobbying for her. But there were other people lobbying for other people, and it was her interview that did it.
RS: There’s so many interesting things about this movie, frankly. But what I found interesting, ‘cause you know, all of us have illnesses in our life. And then people think, well that’s sort of, you know, it’s over, you’re over now, you had cancer, goodbye and good luck, or you’ll come back and do a few things. This is a movie about survival.
BW: Yeah. Her mother dies of cancer when she’s, just on the night before she graduates from high school. Her older sister had already died when she was very young. And then her husband gets serious cancer when they’re both in law school. She’s had a lot of–
RS: She keeps him in law school.
BW: –she keeps him in law school, she marshals all of his classmates to take notes for him, she types up the notes, she’s doing her own work. Oh yes, and by the way, they had a toddler at that point that she’s also taking care of.
RS: Yeah, you sneak that into the movie, so there’s this story, how is he going to stay in law school, and she’s helping him, and suddenly this kid appears. Was that calculated? I mean, was that just sort of how she did it? Oh–we have a child. OK, we’ll work that in.
JC: No, I mean, she would tell you that actually she had serious concerns about, like, you know, once she had a baby, like wow, am I going to go to law school also, and have a kid also? This is, you know, the 1950s, where most women weren’t going to law school in the first place, let alone going to law school with a baby. Interestingly, it was her father-in-law who said to her, you know, Ruth, everyone would understand if you choose not to go to law school because of the baby, but that said, if you want to do it, you’ll find a way to make this work out. And darn it, he was right.
RS: Yeah. Well, it’s interesting, because what emerges here is really a great career role model for everybody. That–and first of all, she doesn’t make any claim that I’m every other kind of woman. She does make a claim that she can cook, and that’s disputed by her family rather viciously. And her husband steps up, you know not as some kind of comic house husband, but you know–no, I cook ‘cause I’m better at it. And I help her get organized, and I tell her no, you have to come home from work at a certain hour, and you do have to get some sleep. And he emerges as–well, you say in the film, or somebody says, as a mensch. [Laughter] But he certainly emerges as, you know, the quintessential supportive husband. And it doesn’t require any sacrifice at all of his own career, ego; you can, in some sense, have it all in this film. It means being careful about your time; Ruth Bader Ginsburg is great at managing time. She doesn’t ask for any excuses, she doesn’t ask for any delays, and she delivers all the time. She’s, you have scenes where she shows up with other justices when she’s on the appellate court; she’s already figured out the case and written the decision, they haven’t even gotten to page one. [Laughter] She has a strong work ethic. And clearly, plans to be successful and get the job done, but you know, doesn’t make a show of it, in a way. It’s just, this is what you do.
BW: Nina Totenberg says, in talking about her reaction to the death of Marty Ginsburg, which of course was devastating for her, and Nina talks about how steely she was in those days. She is steely; she is determined. She faced the death of her beloved husband by going to work the next day. She knows how to just keep going. People said to us, I think Arthur Miller said to us, you know, I was worried after Marty died, about how Ruth would react. But what she did was just kind of appropriate mourning, and then she pushed forward. As her granddaughter says, almost in honor of Marty.
RS: Well, as you point out in the film, she’s also had her own illnesses.
BW: Absolutely. Yes, two bouts of cancer. Herself.
RS: Yeah, and one often a death sentence, isn’t it?
BW: Yes, pancreatic cancer, which was caught quite early. She credits, actually, Sandra Day O’Connor with giving her advice about how to undergo chemotherapy on Fridays so that she could, you know, have her sickness over the weekend and then be back at the court on Monday. People say she did not really miss a day.
RS: [omission for station break] And I’m back with Betsy West and Julie Cohen. They’ve made this incredible film called RBG on Ruth Bader Ginsburg, it’s been–I guess it’s Magnolia and Participant Media, you got big heavyweights behind it, CNN, it’s going to have a full national opening in May. Obviously a very strong Academy Award contender; it will then be on CNN eventually. And so this is going to be much noticed, and it deserves it, I want to be very clear about that. And I want to get to something about, you know, the liberal-conservative division on the court. And you have kind of a chart going through this movie; at first she’s sort of more towards the center, and then she moves over. And towards the end, she then denounces Trump during the campaign, and that really raises some questions about where she [is]. But what I thought was quite interesting was her decision to go work for the ACLU, which was, I mean has been, a controversial organization–for good reasons; they take a very principled stand in support of the First Amendment. But I was wondering, did you explore that? Remember Michael Dukakis, when he ran for president–I had interviewed him, actually, for the LA Times–and he said, I’m a card-carrying member of the ACLU. That became an issue in the campaign. Did she discuss–’cause a lot of lawyers, male or female, interested in a big career, would not have gone to work for the ACLU.
BW: Do you think at that time, in the early 1970s, it was as toxic as it later became after the culture wars? I think when she did it, the ACLU was developing the Women’s Rights Project, and it seemed like a logical thing for her to do. Whether or not later on the association, you know, became in any way problematic–although it was not problematic in her confirmation hearings; it really wasn’t raised that much.
RS: I’m not saying it should ever have been problematic. But I mean, no, because the ACLU was associated with the Fred Korematsu case, with the Japanese internment; they took on McCarthyism. And in your film, you have Ruth Bader Ginsburg, you know, really alarmed by McCarthyism, and–
BW: Yes. As a motivation for her own, you know, involvement in the law. That’s when she thought, hey, lawyers can do something good.
RS: Right, so I’m trying to get at her outlook. And it seems to me, you know–it’s funny, because right now there’s a lot of pressure in colleges, your career, career, career, and what are you going to do and how are you going to make a living. And here is clearly one of the most successful human beings in our history, coming from a meager, poor background, getting to the top; you know, she’ll be always remembered in any historical account of America and so forth. And she, it seems to me, did it without blatantly pursuing career.
JC: Right. I mean, I certainly think when she went and took the job with the Women’s Rights Project at the ACLU in the early seventies, that she did not have a Supreme Court seat in her mind at that point. I think, you know, she’s strategic about her pursuit of equal rights under the law, but I don’t think she was that much of a careerist. She just saw an opportunity to work on an issue that she thought was really important; she saw a place that was willing to commit some resources to it, and she decided to join forces with the individuals who were ready to, you know, put their money where their mouths were on the issue of equal rights for women under law.
RS: She didn’t just take one or two cases. And her argument for going to the ACLU, as a law professor working, is they wanted to take over these cases. Your film is very smart about that, that people had complaints–we could mention some of these, you know; a military person who was held back–
BW: Can’t get benefits that a man would get. Those kinds of inequities.
RS: Right. And she, very carefully, actually picked these cases–that’s what the ACLU does. I’m a big, I’m a card-carrying member of the ACLU [Laughter], I’m a big fan. But what they do is they’re trying to make law, they’re trying to get precedent.
BW: When she says that they, you know, when they say they wanted to take over the cases, that’s because they had a strategy about how to do it. And she modeled that strategy on what Thurgood Marshall had done for civil rights. It was step-by-step. And some cases she would turn down, because it wasn’t the right time, in her opinion; she felt that she had to bring the court along. As she says in the film, I felt like I was a kindergarten teacher; I was teaching these nine male justices that discrimination actually does exist, and it hurts women, and it hurts men; it hurts our whole society, and we need to change this. But that was a gradual process. And yes, she was very shrewd and very strategic about it.
RS: Yes, and one way she made that point, she took the case of a man who was denied his wife’s social security, he was a stay-at-home husband, to show, you know, that this was not just gender-specific, it was about fairness. But I do think what emerges is this idea of this brilliant, quiet warrior, in a way. That she had a plan. You know, it wasn’t a conspiracy, it was a plan.
JC: Right. It was a plan.
RS: How do you dramatically improve the situation of women in America, to get them up to at least the same level, and then go where they can. And it wasn’t hit-or-miss; it wasn’t to get the headline, it wasn’t to–oh, I won that case. It was how do you win? What did she win, six out of seven or–
BW, JC: Five out of six.
RS: Five out of six. And by winning the five out of six really critical cases, she changed law in America before she was on the court.
JC: That’s right.
RS: Before she was on the court; even if she hadn’t gone to the Supreme Court, she would be deserving of this documentary, right?
BW: A place in history, absolutely. Even if she hadn’t been a Supreme Court justice.
RS: Right. As I said earlier, I think really the big issue these days is how do people lead a meaningful life. In a job market that’s scary, you don’t know where to go, what to do; even lawyers don’t find jobs, right. And was it worth the cost of your college education, and what have you. And here we have a case of a woman who, you know, remember what a pioneer she was, you know; and coming out of, you see those pictures, she’s this–how small is she, by the way?
BW: Well, we don’t a hundred percent know. [Laughs]
JC: We don’t know, but I can say that I’m five two, and I certainly have a few inches on her; she’s quite, quite petite.
RS: So she’s lower than five feet, right? I mean, shorter than–
BW: Now, probably at this point–
JC: At this point I would say she’s lower than five feet, yeah.
RS: Yet, she took on this whole world of male dominated law and judges. And she did it without falling into the negative stereotypes that people have tried to put on the women’s movement.
JC: Yeah, she did it without any brashness that was going to turn people off. But she also did it, apparently, fearlessly. You know, everyone that’s known her, and everyone that’s worked with her, said, like, I never saw her nervous. Or maybe she was nervous, but you sure couldn’t tell. I mean, Aryeh Neier, who’s the guy who hired her at the ACLU, he found her a bit intimidating. That was an era where generally women were taught to be meek, and sometimes they kind of were meek. When you listen to audio recordings of her going back to the seventies, what really sticks out to me is how strong she sounds, and how sure-minded she sounds. How could you be looking up at those justices sort of looming above you–like, anyone would be intimidated–and sound, like, ready to take them on? But she just was.
RS: You know, we haven’t actually talked much about her strategy on the Supreme Court. But she’s a uniter. And you know, and yes; she likes Scalia, they both like the opera. But Scalia also, everybody, you know, puts down–not everybody, liberals put down Scalia–Scalia had a strong civil liberties streak to him. And he led the fight on, you know, privacy and other issues of that sort. It seems to me that this is a great film for saying you don’t have to sell out. And the strategy she had–how am I going to get this from A to B to C to D, I have to unite these people, I have to organize them, I have to win the argument, right? ‘Cause when you talk about her writing her briefs and so forth, it’s all about, you know, what is the strategy here. I think I, in your film you actually say before she even started writing it, she would figure out, what is my strategy? How am I going to get these other folks, whether on the appellate court or on the Supreme Court, to sign on? She was really strategic in her thinking.
BW: She wants consensus. If she can get it–and certainly like in the Virginia Military Institute ruling, which was one of her great rulings as a justice for women’s rights, where VMI was integrated, women were capable of going to VMI, now can go there. She pulled other members of the court over to her side; it was a 7-1 decision. She wants to bring people on. That was her mission. Now she’s more often in dissent, and she says look, I’d like to be in the majority, but if I have to write in dissent, I will.
RS: Well, that’s a great point on which to end. Because the first part of the movie, she’s the winner, and it’s going well, and you know, other members of the court are rallying to her. And then we get into this Dark Ages, however you want to describe it; we have a different situation. And by the way, I don’t want to demonize other people in the court, because I think Justice Roberts is, again, somebody who’s not given enough respect–I don’t know, did you talk to her about Chief Justice Roberts at all, or–?
JC: You know, justices have to be fairly careful when talking about one another, so, ah, but they seem to have a fairly affable and affectionate relationship.
BW: And she’s very respectful of him as chief justice.
RS: Yeah. And on some decisions, again, privacy and individual freedom and so forth, he’s actually written some very important cases. But the film ends not with RBG in defeat and isolated, but willing–OK, the issue, the ground has shifted, I have to be the dissenter–OK, I can do it. On this question of whether she should have resigned–at the end of this film you see, oh, no. Because it’s not just a question of her vote or being a liberal, or something–no. She is the keeper of the flame. That you need her there, and whether she’s going to be, even if she’s a minority of one, you want it to be her and not some other person. I think that’s a powerful message, that this woman gets–I don’t know, you know her, I don’t know her–but it seems to me she gets stronger with each extra year of her life.
BW: Well, she is a determined woman. Whether she’s more determined now than she was when she was a young law student, I don’t know. But she has a determination, and as you suggest, a kind of optimism. Because she says, look, I’m writing in the minority now, and some people may, you know, it may be that times are tough right now. But look at where we’ve come in our country. Look at the way Jews were treated, the way African Americans were treated, the way women, LGBTQ people. And there’s been a tremendous amount of progress in her opinion, and she is just going to keep pushing.
JC: And one thing to keep in mind as well, sometimes dissents end up pointing the way forward. Sometimes a later court will pick up a point that’s been made in dissent, and sure enough, that will become the law of the land. I’m sure that’s what Justice Ginsburg is hoping with some of the dissents she’s writing at this point. And who knows, maybe she’ll be right.
RS: OK. Well, that’s it for this edition of Scheer Intelligence. I’ve been talking to these great filmmakers, Betsy West and Julie Cohen. They’ve actually made the law, Supreme Court, inner workings of the Supreme Court, exciting. I think RBG, Ruth Bader Ginsburg, has made herself exciting and a cultural icon on her own terms, but you capture the complexity and interest of this woman. And so that’s it for this edition of Scheer Intelligence. Our producers are Joshua Scheer and Rebecca Mooney. Our engineers are Mario Diaz and Kat Yore. And see you next week.