Amy Bergquist, Senior Staff Attorney at The Advocates and former law clerk for Justice Ruth Bader Ginsburg, pictured with Justice Ginsburg
Amy Bergquist is Senior Staff Attorney with The Advocates For Human Rights International Justice Program and a former clerk to Justice Ruth Bader Ginsburg. She spoke recently at a vigil honoring the life of Justice Ginsburg in Minneapolis, Minnesota. Following are her remarks:
Thank you all for coming to celebrate the life and legacy of Justice Ginsburg. It was humbling to clerk for Justice Ginsburg and to see first-hand her brilliant intellect at work. She was tirelessly dedicated to the work of the Court, and to advancing the cause of justice. So tireless, in fact, that she sometimes asked me or one of my co-clerks join her for a workout session with her personal trainer—she would run on the elliptical machine and lift weights while dictating line edits.
The words of another judge I worked for, Judge William Fletcher, speaking about his mother, Judge Betty Binns Fletcher, apply with equal force to Justice Ginsburg: “She spoke truth to power, and just as important she spoke truth in exercising power.”
On the wall just outside Justice Ginsburg’s office hangs a gift she received while I was clerking for her. It is a framed, official version of the 2-page Lilly Ledbetter Fair Pay Act of 2009, along with an autographed photograph of President Barack Obama signing the Act into law. The Lilly Ledbetter Act—the first bill President Obama signed into law—amended Title VII of the Civil Rights Act to clarify that the statute of limitations for filing an equal-pay lawsuit resets with each new paycheck affected by the employer’s discrimination. Two years earlier, the Supreme Court, in a 5-4 decision, with Justice Ginsburg writing the dissent, held that the statute of limitations began to run when the employer first made a discriminatory pay determination, thereby barring most women from bringing pay discrimination claims, because they usually uncovered the discrimination only years after it began.
This gift, and its prominence in chambers, point to an important lesson I learned from Justice Ginsburg. Sometimes the Court doesn’t or can’t get it right, either because statutes are written badly, precedent doesn’t give enough room to maneuver, or there just aren’t enough votes. But in her powerful dissents, she often sowed the seeds for achieving longer term social justice. Her dissent in the Ledbetter case called on Congress to take up the baton, and it did. Sometimes change comes through the courts, but sometimes the onus is on Congress, and in some cases we need to build social movements to lay the groundwork for social justice.
We mourn Justice Ginsburg’s death, but we must see it not as a defeat, but as a setback. She has sown the seeds for social justice not only in her opinions, speeches, and her life story, but also in all of us—from lawyers arguing at the Highest Court in the land, to children dressed up as the Notorious RBG for Halloween. She has left us a legacy, and that legacy calls on every one of us to mobilize—to nurture those seedlings in the courts, Congress and state legislatures, administrative agencies, and the ballot box, and yes, to build social movements to change hearts and minds.
As Minnesotans, we’ve learned these lessons over the last decade. When we confronted the setback of a ballot initiative that would change our constitution to deny same-sex couples the right to marry, we couldn’t rely on the courts or the legislature to set things right. We mobilized, working tirelessly to have difficult, heart-felt conversations with friends, family, neighbors, and perfect strangers. And we were the first state to fight back and defeat such an initiative. But in building that movement, we sowed the seeds for our legislators to enshrine marriage equality into law. Justice Kennedy eventually caught up to us.
I want to add that Justice Ginsburg’s first area of legal expertise was not gender equality—it was civil procedure. Civil procedure is about the rules—the legal framework that allows people to know where they stand and what to expect. It’s about fairness and the rule of law, but rules are also important for reinforcing the integrity and credibility of the institutions that articulate those rules. So when I learned of the Justice’s last “fervent wish,” I knew it was rooted in her belief that a rule is meaningless if it is good for one day only, to be discarded when it is not politically expedient. The political machinations that began before the ink was even dry on her death certificate are an affront to the rule of law and undermine the legitimacy of the elected branches of our federal government.
We must remember that whether we are bringing a lawsuit, lobbying our elected officials, protesting in the streets, voting, or having those difficult conversations with our relatives and neighbors, we too are speaking truth in exercising power. And we all have the power to speak our truth.
We stand here at the beginning of the Jewish New Year, but also at the start of the harvest season. It is time to begin the hard work of picking up where Justice Ginsburg left off. May her legacy flourish and bear blessings in—and for—all of us.
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