New York Times

They share New York City roots, a liberal outlook and a personal trainer. But a gap separates Justices Ruth Bader Ginsburg and Elena Kagan, one they explored during an often lighthearted joint appearance last week at the New York City Bar Association.

Justice Ginsburg, 80, is the oldest member of the Supreme Court, and she came of age when many legal careers were closed to women. Justice Kagan, 53, is the court’s youngest member, and she seemed to have little trouble compiling a glittering résumé. She was the first female dean of Harvard Law School and the first female United States solicitor general.

“What explains this gulf between Justice Ginsburg’s experience and mine?” Justice Kagan asked. “In large part the answer is simply Justice Ginsburg. As a litigator and then as a judge she changed the face of American antidiscrimination law.”

Justice Ginsburg, having been turned down by law firms and refused judicial clerkships, became a professor at Rutgers Law School, where she experienced the sort of blatant discrimination that was common at the time. “Rutgers told her that she was going to be paid less than her male colleagues because, quote, your husband has a very good job,” Justice Kagan said.

As a lawyer, Justice Ginsburg framed and argued cases that established an entirely new body of constitutional law, one requiring the equal treatment of women. As a judge, she kept pushing, sometimes in the face of headwinds from her more conservative colleagues.

In what Justice Kagan called “possibly the most effective dissent of this generation,” Justice Ginsburg in 2007 called on Congress to overturn Ledbetter v. Goodyear Tire and Rubber Company, which said a federal law had imposed strict time limits for bringing lawsuits in workplace discrimination cases.

“I suspect that when Justice Ginsburg wrote those words she remembered her own experience of pay discrimination at Rutgers,” Justice Kagan said.

Congress responded to the dissent with the Lilly Ledbetter Fair Pay Act of 2009. A framed copy of the law hangs in Justice Ginsburg’s chambers.

The occasion for the justices’ appearance last week was an annual lecture in Justice Ginsburg’s honor, delivered this year by Justice Kagan. Justice Ginsburg introduced her colleague, saying her rise had been marked by wit and grit.

“The personal trainer with whom she boxes has been my physical fitness guardian since 1999,” Justice Ginsburg said. “He tells me she has the best jab-cross-hook-punch combination on the federal bench.”

Justice Kagan responded by taking a couple of affectionate jabs at the honoree. She admitted to having nursed a “minor grudge” for almost three decades arising from her efforts as a law student to secure a judicial clerkship on the United States Court of Appeals for the District of Columbia Circuit, where Justice Ginsburg served from 1980 to 1993 before joining the Supreme Court.

“I had the good fortune to be offered a clerkship by several of Justice Ginsburg’s colleagues: Abner Mikva, whom I eventually clerked for, Harry Edwards and Pat Wald,” Justice Kagan said. “The only one of President Carter’s nominees to the D.C. Circuit who thought me not quite good enough was Judge Ginsburg. She didn’t even interview me.”

Justice Kagan also had a little fun with Justice Ginsburg’s writing and interests. “As a law professor, she was a pathmarking scholar of civil procedure,” Justice Kagan said, and then paused. “Pathmarking. Have you ever heard that word before? It appears in about 30 Justice Ginsburg opinions — although it appears actually not to exist. Oh well.”

Justice Ginsburg is also an expert in comparative civil procedure, Justice Kagan said: “She wrote what I am confident is the definitive American volume on civil procedure in Sweden. That’s why when the Supreme Court faces a tricky question of Swedish civil procedure, we always go straight to Justice Ginsburg."

Justice Ginsburg later explained that the locution and her expertise in things Swedish were related. “Pathmarking” was a tribute, she said, to a book by the Swedish diplomat Dag Hammarskjold. (The book, a volume of journal entries, was called “Markings” in an English translation, though Swedes say “Waymarks” or “Pathmarks” would have been more apt.)

Justice Kagan, the newest justice, does not appear in public as often as some of her colleagues, but that is not saying much. The current Supreme Court ought to have its own speakers bureau. On the same day that Justices Ginsburg and Kagan appeared in New York, Justice Sonia Sotomayor wasspeaking in Connecticut, Justice Samuel A. Alito Jr. in Florida and Justice Antonin Scalia in Hawaii.

The two justices in New York had differing views about another sort of publicity: cameras at the Supreme Court. Justice Ginsburg was against them, on the ground that viewers would misunderstand the significance of oral arguments. The bulk of the court’s work, she said, is based on written submissions and private discussion, reflection and writing.

“What the public will see is two people with a half-hour a side having a conversation with the justices, and they come away with the idea that, well, the best debater is going to win that contest,” Justice Ginsburg said. “It would leave a false impression of the appellate process to think that the oral argument is what is decisive in the cases.”

Justice Kagan was more equivocal. She acknowledged Justice Ginsburg’s concern, along with the possibility of grandstanding, but she said there were important values on the other side.

“It’s a really hard issue,” she said. “Transparency is an important thing in government institutions, and for the most part the court would look pretty good."