Solicitor General Elizabeth Prelogar Delivers Remarks at Justice Ruth Bader Ginsburg’s Bar Memorial

Remarks as Delivered

Good afternoon, members of the Ginsburg family, members of the Court, members of the Bar and friends.

This meeting of the Bar of the Supreme Court of the United States has been called to honor the memory of Justice Ruth Bader Ginsburg, who served as an Associate Justice of the Supreme Court from 1993 until 2020.

In addition to her time on the Court, Justice Ginsburg served as a judge on the United States Court of Appeals for the D.C. Circuit, as the first tenured female professor at Columbia Law School and as founder and director of the Women’s Rights Project at the ACLU.

She was a visionary as an advocate who championed equal citizenship for all persons and as a judge who fought every day to fulfill this nation's promise. She was a person of principle, graced with a brilliant mind, quick wit, tireless nature and courageous soul. She was a devoted wife, mother, grandmother and great-grandmother, a cherished colleague, an inspiring teacher and a historic figure in American law.

She revered the rule of law and the Constitution. The Court and this country are forever honored by her service.

I want to express my appreciation to Judge Paul Watford and Hajin Kim, who co-chaired the Arrangements Committee for this meeting, and to the members of that committee, Justice Rachel Wainer Apter, Judge John Owens and Amanda Tyler. I also want to express my gratitude to Judge John Owens and Amanda Tyler, who co-chaired the Resolutions Committee, and to the members of that committee: Payvand Ahdout, Jennifer Clark, Kelsi Brown Corkran, Beatrice Franklin, Abbe Gluck, Justice Goodwin Liu, Michael Klarman, Amy Marshak, Deborah Jones Merritt, Trevor Morrison and Daniel Rubens. The meeting today will be chaired by Judge Owens, and Scott Harris will be the secretary.

I had the incredible honor of clerking for Justice Ginsburg, so before I turn the podium over, I wanted to share a few reflections on three roles that defined the Justice's life and career as a lawyer, a mentor, and a fighter.

Perhaps the most natural place for me to begin is with Justice Ginsburg’s role as an advocate. It’s natural not only because I'm speaking on behalf of the Supreme Court Bar but also because Justice Ginsburg is the person who moved my admission to this Bar and was one of the first people who encouraged me to apply for a job in the SG’s Office. Although I didn't get to argue before her as Solicitor General, I like to think that she’d be happy that I'm able to speak about her today in that capacity.

Justice Ginsburgs accomplishments as an advocate are extraordinary, the stuff of legend. She argued six cases in this Court between 1972 and 1978 at a time when few women were arguing in any court, much less this one, and she made those cases count, winning five of them and establishing the principle of gender equality as constitutional law, often through her ingenious strategy of bringing sex discrimination cases on behalf of men.

One of her big cases, litigated in the Tenth Circuit alongside her husband, Marty, was Moritz versus Commissioner. It involved a tax code provision that allowed single women but not single men to deduct the cost of caring for an elderly dependent. The case is memorably depicted in the movie “On the Basis of Sex,” but I'll always remember hearing the story firsthand at a dinner that the Ginsburgs hosted for us clerks during our clerkship year. As they told it, Marty learned about the case through his tax practice and ran into Justice Ginsburg’s room to tell her that she needed to read the lower court decision. She said, Marty, you know I don't read tax cases.

He said, well, you need to read this one. At the oral argument, they divided the argument time, and Marty went first. He told us that as he was delivering his argument, she started tugging on his sleeve because he was going on too long.

Without missing a beat, the Justice quipped, you were cutting into my time. Of course, they won the case. When the Solicitor General sought review in this Court, he attached an appendix listing all of the federal statutes that would be called into question by the Tenth Circuit's decision because they classified based on sex. Justice Ginsburg later described the appendix as a treasure trove.

It turned into a sort of target list, and she took aim at many of these statutes in the year ahead. So, whatever else I do as Solicitor General, I won’t be filing any appendices like that.

Although Justice Ginsburg’s advocacy transformed an entire area of constitutional law, she never focused only on abstract legal principles. Decades later, she still remembered every client and the injustices that brought them to court. Stephen Weisenfeld, for example, lost his wife, Paula, during childbirth, but he wasn’t eligible for the Social Security benefits that a similarly situated widow would have received.

Justice Ginsburg won his case unanimously in the Supreme Court, but she didn’t stop there. She kept in touch with the Weisenfelds for the rest of her life, and almost 30 years later after the Court's decision, when the little boy at the center of the case got married, Justice Ginsburg officiated the wedding.

That enduring commitment to people animated the second of Justice Ginsburg’s roles that I wanted to highlight, her role as a mentor. First, Justice Ginsburg recognized the importance of her own mentors. In the brief she filed in the landmark case Reed versus Reed, she insisted on including in the signature block some of the lawyers and scholars whose work had inspired her. As she put it, she stood on their shoulders and should give them credit.

And here at the Court, she mentored her law clerks in countless ways. She insisted on mastering the facts of every case, reminding us that the Court's cases are about real people with real problems.

Clerking for her was also a master class in legal writing. She edited opinions by hand, so we would triple-space the drafts to leave plenty of room for her notes, and she had no trouble filling that space with red ink. If she wanted to reorganize the draft, she would literally cut out a paragraph and tape it somewhere else on the paper. So it was an old-school cut-and-paste. And then, when she finished, she would call the law clerk into her office and go over the revisions one by one to explain her thinking. It was an amazing opportunity to learn about the craft of legal writing from an extraordinary writer.

She modeled her incredible work ethic in many other ways. She was a famous night owl who would often stay up half the night poring over a draft line by line. The story was that she and Justice Kennedy, a well-known early bird, would pass each other going in opposite directions in the garage. For all of her devotion to her work, Justice Ginsburg also reminded us that there's more to life. She took us to the opera and patiently explained what was going on when I confessed at intermission that I had no ide what was happening on stage. She was a fitness enthusiast who lifted weights and did pushup well into her 80s, often while wearing a Super Diva sweatshirt. And perhaps thanks to Marty, she appreciated good food, especially sweets.

One of my favorite memories came at the annual Supreme Court Christmas recess party, where I spotted the Justice across the room, making a beeline for the chocolate fountain. But she didn’t pick up a strawberry or a piece of cake to dip. Instead, she put her spoon directly under the chocolate flow – and ate it straight. As with so many other things, the Justice knew exactly what she wanted and didn't waste time with filler.

The final aspect of Justice Ginsburg’s legacy that I want to touch on is her fighting spirit. She was almost 25 certainly the physically smallest person ever to serve on this Court, but I doubt that anyone has ever punched further above their weight.

She faced profound adversity in every phase of her life. Her mother died the day before her high school graduation. Marty was diagnosed with cancer early in their marriage. She endured discrimination based on sex and pregnancy and religion. She faced multiple bouts with cancer. And she overcame again and again, demonstrating a resilience, fearlessness, and independence matched by few others. She was the epitome of unrelenting grace.

And she was unyielding in fighting for the things she believed in.

When she was preparing for her Supreme Court confirmation hearings, a White House staffer wrote a memo describing her “disdain for the confirmation process.” The memo added that Judge Ginsburg views the White House’s interests and her interests as being at odds with each other. She sees us as having a stake in presenting her as a moderate and in getting along well with the Senate. She sees her interests as “being herself, preserving her dignity, and promoting her independence.” I'll add only that Justice Ginsburg was confirmed 96 to three.

I witnessed one of Justice Ginsburg's most difficult battles up close during my clerkship. That was the year that Marty was again diagnosed with cancer. The Justice lovingly cared for him, juggling his medical appointments and hospitalization with his – with her work at the Court.

The morning after he passed away was the final decision day of the term, and Justice Ginsburg had a majority opinion in one of the leading cases. The grief was so evident in Court as Justice Ginsburg delivered her opinion.

As usual, her voice wasn't particularly loud or particularly fast, but it was steady and sure, confident in her decision in the case and in her knowledge that by coming to Court to hand down the decision, she was doing what Marty would have wanted.

Justice Ginsburg’s fight ended in September 2020 following yet another hard-fought battle with cancer. I stood guard with her other former clerks as she lay in repose at the Court.

Because of the pandemic, her casket was placed outside the Court at the top of the front steps rather than in the usual indoor location, and as I thought about it, I decided that it was fitting that she was outside, accessible to the public.

Her life was a quintessentially American story. She was born to a family of immigrants and grew up with modest means. She faced profound adversity and discrimination. Yet, through her intellect, hard work and force of will, she not only reached the top of her profession, she reshaped it.

She broke barriers for those who came after her and she inspired multiple generations. So many people came to pay their final respects as she lay in repose, as I walked to the Court down East Capitol Street, the line of mourners stretched for block after block after block, almost all the way to Lincoln Park. There were all kinds of people, young and old, women and men, parents with their small children. Some cried. Some kneeled and prayed. And many of them looked from her flag-draped casket up the majestic columns of this Court to the words inscribed in marble on the facade, words that inspired Justice Ginsburg throughout her career and that she brought to life for generations to come: Equal justice under law. May her memory be a blessing.