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Justice Ruth Bader Ginsburg (Charlie Mahoney/The New York Times)

So notorious

Ruth Bader Ginsburg weighs in on the legal implications of #MeToo

By WITW Staff on February 20, 2018

In a lengthy interview with the Atlantic’s Jeffrey Rosen, Supreme Court Justice Ruth Bader Ginsburg shared her thoughts on everything from childcare, to gender discrimination, to maintaining a healthy marriage (“It helps sometimes to be a little deaf.”) She also spoke in detail about the intersection of the law and the #MeToo movement — a movement that she believes “will have staying power” — and the thorny topic of due process that has emerged as a flashpoint as society tries to navigate the #MeToo era.

Ginsburg noted that Title VII, which prohibits employers from discriminating against employees on the basis of race, sex, religion, and other identifying traits, has been in place long before the subject of sexual harassment in the workplace burst to the forefront of national discussion last year. But, Ginsburg said, “it takes people to step forward and use [the laws.]”

“Rights have to start with people who want them, and then the court is a reactive institution,” she said later on in the conversation. “There was a fine federal judge on the Fifth Circuit, Judge Goldberg, who once said, ‘The courts don’t make the conflagrations but they do their best to put them out.’”

Ginsburg, who will celebrate her 25th anniversary on the Supreme Court this year, said she believes the tide is turning when it comes to sexual harassment cases. As an example, she cited “confidentiality pledges,” which in the past have barred women from speaking publicly about workplace misconduct. “Women who complained and brought suit were offered settlements in which they would agree that they would never disclose what they had complained about,” Ginsburg said. “I suspect we will not see those agreements anymore.”

The Supreme Court Justice also weighed in on some of the more contentious elements of the #MeToo movement, including how society should contend with varying degrees of misconduct — a question that became particularly pointed after misconduct allegations were leveled against Aziz Ansari — and the controversies surrounding the way sexual assault allegations have been handled on college campuses in recent years. In September, Education Secretary Betsy DeVos announced new federal guidance on campus sexual assault, replacing the Obama administration’s system of campus sexual assault enforcement with one that emphasizes the rights of the accused.

“There are degrees of conduct, yes,” Ginsburg said. “But any time a woman is put in a position where she is inferior, subordinate … she should complain, she should not be afraid.”

When asked about due process, a hot topic in the campus sexual assault debate, particularly given DeVos’ new guidelines, and now in society at large amid the #MeToo phenomenon, the justice replied, “Well, that must not be ignored and it goes beyond sexual harassment. The person who is accused has a right to defend herself or himself, and we certainly should not lose sight of that. Recognizing that these are complaints that should be heard. There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing.”

Ginsburg addressed a number of other topics with Rosen, including revealing some of the Supreme Court ruling she would like to see overturned.

Read the full interview at The Atlantic.

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