Strict Scrutiny - In Memoriam
Episode Date: September 21, 2020Leah, Melissa, Kate are joined by Anne Joseph O’Connell, Adelbert H. Sweet Professor of Law at Stanford Law School and former clerk to Justice Ruth Bader Ginsburg. Follow us on Instagram, Twitte...r, Threads, and Bluesky
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Mr. Chief Justice, may it please the court.
It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word.
She spoke, not elegantly, but with unmistakable clarity.
She said, I ask no favor for my sex.
All I ask of our brethren is that they take their feet off our necks.
This is a special episode of Strict Scrutiny, commemorating the life and brilliant career
of Justice Ruth Bader Ginsburg, who passed away at the age of 87 on Friday, September 18th, 2020.
I'm Leah Littman. I'm Melissa Murray. And I'm Kate Shaw. So on Friday night, the evening before
Rosh Hashanah, the Jewish New Year, began, we learned that Justice Ruth Bader Ginsburg had
passed away from complications from metastatic pancreatic cancer. We knew, of course, that during the
court's most recent sitting in May, she had participated in arguments from her hospital bed.
And in July, we learned that during that hospital stay, they had discovered that cancer had spread
to her liver and that initial treatments were unsuccessful. But still, I think most people
were unprepared for her passing. It was like a day we
knew on some level might happen, but couldn't bring ourselves to actually think that it would,
maybe because she had defied impossibly long odds at so many points during her career.
With that in mind, we are joined today by Anne Joseph O'Connell, who is the Adelbert H. Sweet
Law Professor at Stanford Law School and a former clerk to Justice Ginsburg from
the October 2003 term. So Anne, welcome to the show and many condolences on this loss.
Thank you. Thank you for having me.
So when the news broke of Justice Ginsburg's death, conversation turned immediately to
questions about the impact on the election, when the president might nominate someone to replace her, who that nominee might be. And we, of course, understand that instinct,
but we also want to spend a little bit of time talking first about Justice Ginsburg's extraordinary
life and legacy. And then I think at the end of the conversation, we'll turn to some thoughts on
what might happen next. But for the first part of the conversation, Anne,
we're so happy to have you with us. So you clerked for the justice in the 2003 term,
as Melissa just said. What was it like to work for her?
It was an amazing opportunity. Every day when I walked into the court, I would pause as soon as I entered the building to think that just a whole combination of
factors and a lot of luck had led me there. And to have the experience of working for one of my
idols was an incredible one. I mean, some things that immediately come to mind is her physical size. I know that sounds like an odd
thing to say, but I'm somewhat small, but that Justice was even smaller, and both in height
and in weight, and could look quite frail, but beyond the physical appearance, she had this strength. And the
strength didn't come in loud words or in brash movements. It was sort of a very quiet strength.
So that's something that struck me. What also struck me is just how hard she worked and the hours in which she worked. It was actually a match for me. I'd
spent many summers in high school and college working for the U.S. Army where the workday
started before seven. If you turned up to work at 7.30, you were late. But the justice was a
night owl. And so she was often seen driving.
This is at a time where she drove herself to the court for oral arguments, driving down
Constitution Avenue just moments before 10 a.m.
just to sneak in right before oral argument.
And she did most of her work between midnight and 4 a.m.
And because I like those hours, too, and I was often in chambers in those hours,
she would call and we would have these wonderfully long conversations in the wee hours of the night.
So what was her relationship like with the law clerks? What were those wonderfully
long conversations about in the wee hours of the night? Mostly about the work. She was in the details, you know, and every word she cared about.
And both in terms of preparing for oral argument, and then of course, with regard to opinion
drafting. So a lot of it was just on the work and getting the work right. I mean,
she was a very demanding boss. I think she had gone through so much to get where she was.
And she wanted to make sure that the work that came out of Chambers was of the highest possible quality. Now, sometimes those conversations
were not about work, and they were about theater or opera. And so, you know, sometimes she would
speak about that as well. You know, I always got the sense, and I remember she had a reputation
for being very exacting, right, when it came to her, you know, interactions with her law clerks.
Her standards were unbelievably high.
But it always seemed to me that that must have been because there was never any room for error on her own assent, right?
She was required to hold herself to these just unbelievably high standards in order to do and achieve the things that she had done.
And so she sort of held everyone around her to the same kinds of standards.
That's right. And not just her clerks. I remember a story. I also clerked for Judge Williams, who sadly passed in August from COVID-19.
And Judge Williams had been then Judge Ginsburg's colleague on the D.C. Circuit.
And he remarked that she when he circulated opinions would line edit his opinions and send them back to him.
So she kept everyone to account.
So much has been made of her very warm relationship with Justice Scalia,
who, as we know, was sort of her ideological opposite on the court.
But in the wake of her passing, there have been some really
lovely statements from her other colleagues. So Justice Breyer noted that he was reciting the
Mortar's Kaddish at Rosh Hashanah service. And when he heard of her passing, he thought,
a great justice, a woman of valor, a rock of righteousness, and my good, good friend,
the world is a better place for her having lived in it. And Justice Sotomayor,
who in this last term was often alone with Justice Ginsburg and dissenting from some of the decisions of the court, noted that her dear friend and colleague was an American hero, a path-breaking
champion of women's rights who served our country in court with consummate dedication, tirelessness,
and passion for justice. Can you say a little bit about her work with her
colleagues? I mean, we all know about her friendship with Justice Scalia, but what about
the rest of her time on the court and the rest of her colleagues? Yeah, if I could just share one
quick story about Justice Scalia and the friendship with Justice Ginsburg. On her birthday,
I remember sitting in chambers and I had the desk closest
to the front door of chambers of among the four clerks. And I heard this booming voice coming down
the hall, Ruth, Ruth, my dear Ruth. And the floor was sort of pounding like the person was semi
running. And in came Justice Scalia with this huge bouquet of roses for the justice. And so she and Marty, who was still alive at the
time I was clerking, were very close with Justice Scalia and his wife. But she seemed to have warm
friendships with her other colleagues on the court. And she was very respectful of all of them and encouraged the clerks. There
are opportunities for the clerks to sort of take each justice out for lunch or to have some
interaction with the other justices. And I do remember once my co-clerks and I went to lunch
with Justice Thomas, and we got in this several-hour conversation.
I think in part, I grew up in a devout Catholic family, and Justice Thomas almost became a priest.
Anyways, we spent hours in conversation with Justice Thomas, and Justice Ginsburg actually
had to telephone and kind of get us back to chambers. We were gone for so long, but I think
she was hesitant to do that, but it had just gone on for
so long. It's funny, in the last couple of years, she had become increasingly frail. And I always
thought it was interesting when she would step down from the bench at oral arguments,
it was Justice Thomas who often offered her his arm to assist her down, which I thought was
very sweet as well.
You mentioned her kind of small stature, Anne, and one of my favorite visuals from my
year at the court was seeing Justice Ginsburg kind of waddle down the hallway carrying the
cookie tray after the justices' conferences back to her chamber. So it was this huge tray that
honestly was probably her size, and it was all the leftover sweets from the justices' conference,
and she had a really big sweet tooth. And so she would take all the
leftover cookies and bring them back to her chambers. I wonder if did Marty bake those
cookies? Because he, of course, was the baker in the family. So this was after Marty had passed
away. Oh, when you were there. I see. Okay. Well, I asked because when I was there, it was while
Marty was still alive. And the time that my co-clerks and I got to sit and have a meal with Justice Ginsburg instead of a lunch out, it was a high tea in her chambers with this unbelievable almond cake that Marty had baked.
So I still remember the flavor of it.
It's amazing.
So, Anne, was your clerkship the first time you had interacted with Justice Ginsburg or seen the justice?
No, sort of a wonderful combination
of factors. I had, even though I had grown up outside of Washington, D.C., I had never stepped
foot in the Supreme Court until after my first summer of law school. And that summer I was
working for the General Counsel of the Department of Defense. And they suggested, you know, you should just go hear decisions come
down from the court. And so one day I went, I stood in the public line, I got a seat. And that day,
Justice Ginsburg announced her opinion about women having to be let into the Virginia Military
Institute. And so it was the first time I saw her in person, heard her in person. And I had had a rather difficult first year of law school,
which had followed a first year of graduate school where I did the economics graduate sequence.
And the crazy gender dynamics in both of those first years was really something that was striking
to me. And so to hear her read that decision, I just had tears
streaming down my face. And so when I got to meet her in person was when she called me for an
interview. And she called me for an interview, she said, because at the bottom of my resume,
I had written that I enjoy swimming, attending the theater, and spending time with my grandparents,
who they were the reason that got me through both graduate school and law school.
I would spend one to two weekends a month with my grandparents.
And Justice Ginsburg said she had never seen anyone mention their grandparents before.
And so that was one of the major topics of our interview.
And then I was lucky enough to have this year experience clerking for her.
Did you tell her about hearing her announce the decision in VMI when you interviewed with her?
No, I didn't.
Were there any notable cases from the term in which you clerked for her that you want to share with us?
Sure. So it was an unusual term in that it started before October. There were campaign
finance cases that were argued in advance of the traditional first Monday in October start.
So it meant that all the clerks got there and the workload was really high from the start.
And those oral arguments were long, right? They were several days of oral argument. Then this is in 2003, 2004. So there were also key war on terror cases
that term, just one, I mean, Hamdi versus Rumsfeld, whether you could hold a U.S. citizen as an enemy combatant just on the basis of a declaration by a Department of Defense official.
So there were the, you know, kind of campaign finance and war on terror were the bookends of a sense of critical cases that term. The ones she wrote in, there were kind of a slew of statutory interpretation cases,
you know, about bankruptcy statutes, two cases she wrote on on ERISA, other statutory
interpretation cases, and you can see her kind of careful parsing of statutes in those opinions. Some were majorities, some were dissents,
some were concurrences on the statutory interpretation side. And then as someone who
teaches or at least taught civil procedure when I was at Berkeley for 14 years,
there were some civil procedure cases that term as well. One on diversity jurisdiction, the Grupa Data Flux case was that term. This is where the parties weren't completely diverse at the, you had to be completely diverse at the time of
filing. And she said, whoa, that's going to have exorbitant costs to have it redone. And there
were other, there was a foreign discovery case about that she wrote in where she said that
district courts were allowed but not required to provide assistance to foreign tribunals. So there was
sort of a range of the detailed and the broad. It was sort of a phenomenal breadth of cases,
as it is, I'm sure, most years. Yeah. You ended that discussion talking about procedure. And of
course, you know, she was very associated with, right, procedure cases. She had sort of begun
her academic career doing this kind of comparative study of civil procedure in Sweden. She was a procedure scholar, among other
things, during her time as a law professor, and she always seemed to get the really needy procedural
cases. And they're, you know, kind of dry. If you like procedure, I think we actually all do,
probably, in this conversation. But they're not, you know, I think to her, it wasn't just the
intellectual puzzle in it, right? There were substantive justice implications to the kind of choices that we make about it and the way that 2013, Justice Ginsburg came to Berkeley Law, and she
came to several classes. And this was arranged by amazing people at Berkeley, including Amanda
Tyler. And Justice Ginsburg came to my civil procedure class and co-taught it. And we had
just covered, as maybe some of the listeners on to the podcast are thinking about,
you know, what do you need to state a claim so it's not dismissed under 12b-6? And this had
followed decisions in Twombly and in Iqbal, where Justice Ginsburg was in dissent in both of those
cases, where the court kind of raised the burden on those filing claims.
And as part of the class, I had given students proposed legislation
that would have reinstalled the lower pleading standard,
the Conley versus Gibson standard for pleading a claim.
We were calling on students, the justice and I,
and many of the students favored this legislation.
And then it was really interesting. Justice Ginsburg said, you really want Congress to be
making the rules of civil procedure and not the courts? And it was just this moment, right? Because
even though she had dissented, even though she preferred the Conley versus Gibson standard,
she had such faith in how the federal
rules of civil procedure are normally constructed. Of course, Congress can create a rule of civil
procedure. But normally, the rules of civil procedure come through this sort of agency type
process within the courts that the Supreme Court eventually signs off on. And that was a process
she preferred. And it was a process she preferred. And it was
a really interesting moment. And then another moment kind of post my clerkship is she had
dissented in a case called Shady Grove, which was about Erie. And she, I don't exactly remember
where we were, but she grabbed my arm and she said, Anne, you must teach my dissent in Shady Grove. You
must teach my dissent in Shady Grove because these were issues that really mattered to her.
I really like that. Yeah, I like the first story because it so well reflects her inner
institutionalists and how she just has such faith in if we adhere to institutional safeguards,
you know, here being, you know, the courts are the ones who have the role in establishing the rules of civil procedure, then that will lead us to, you know, better, more just substantive outcomes.
And, you know, it's good to have some people with that faith.
Now more than ever.
So, Anne, I can't help but notice it must have been incredibly nerve wracking to teach in front of
your mentor and judge. So what's going through your mind as you were cold calling with the
notorious RBG? I don't know who was the most nervous, right? Was it the student
who I had sort of picked in advance because she was a Cornell undergraduate. And so I thought
since Justice Ginsburg had gone to Cornell, like was Madison the most terrified? Was I the most
terrified? I'm not really sure. Madison did a great job. But the justice did at one point in
the class say, oh, Anne, you know that case from the 1950s? And my brain is going,
what case from the 1950s? Like, what case? So luckily, I didn't have to spit out an answer
because I would have had to say, I have no idea what you're talking about.
It sounds, I remember that day at Berkeley, and I remember being very glad that I did not teach in
the civil
procedure rotation and could merely be a spectator as opposed to an active participant in that.
It was, I will say from the spectator's position, it was a very active and engaged
session between the justices, the students, and Anne. All right, this is a show that perhaps we should have anticipated having to do, and yet we find ourselves somewhat on the back foot talking about this. How to capture a life and a career that meant so much to so many and had such a profound impact on the law and the way we understand it. I mean, you know, we use her words to open
this podcast. Like, you know, I can't even imagine what we're going to say to conclude this. So,
Anne, I'm going to give you the last word as her clerk. Before we shift into sort of thinking about
her jurisprudential legacy more broadly and what comes after, like, do you want to just sort of say
something to kind of capture this person who obviously had such importance in your life but
in so many other people's lives as well that's a hard one to sum up to sum up the notorious rbg
i guess i would just say on a personal level that her her life both professionally and personally has been so inspirational to me
to have a career to have kids to have a spouse to know that it's really hard if not impossible
to have them all in the air going really well at one time.
And there's this sort of give and take over time. And that one's career in particular doesn't
follow a linear path, like her career is from the start not destined to end up at the Supreme Court
and kind of taking advantage of the many different opportunities
because they're there and because you're passionate about them and not because they're
instrumental in some linear story, I think has been really inspirational to me and I hope to
so many others. Thank you, Anne. To just provide a little perspective on what Anne has said and what we will continue to talk about,
Justice Ginsburg was not just a giant of the court. She was actually a giant of women's rights
long before she came to the court. She was a law student at Harvard Law School. She was elected
to the Harvard Law Review.
She transferred to Columbia Law School in her third year
because her husband, Martin Ginsburg,
had gotten a job at a law firm in New York
and Harvard wouldn't allow her to continue
as a student at Harvard when she was no longer in residence.
So she transferred to Columbia,
where she was also admitted to the Columbia Law Review.
She was denied a diploma from Harvard, which subsequent
deans offered to rectify. She held out for an honorary degree, and she received it. And at that
honorary degree ceremony, she was honored by Placido Domingo, a noted opera singer. And of
course, opera was one of her great passions. Her career in the law began somewhat
inauspiciously. Although she was at the top of her class, she was disadvantaged by both being a woman
and a mother and also by being Jewish, and so she was turned down for employment at many of the law
firms that might have welcomed a man with similar credentials. She narrowly missed being a clerk for the Supreme
Court. Felix Frankfurter considered her application, but ultimately declined to hire her.
And it wasn't until her law professor, Jerry Gunther, stepped in that Edward Palmieri of
the Southern District of New York agreed to take her on as a clerk. And it was noted that
Professor Gunther promised that he would never send another clerk to Judge Palmieri if he did not give Justice Ginsburg a chance.
When she left her clerkship again, she had a difficult time finding employment.
This was when she went off to Sweden Law School, where she taught civil procedure,
but also pioneered the field of women's rights and sex equality law, writing the first casebook
in the field with her very good friend, Herma Hill Kay, who was the first female dean of the
University of California, Berkeley. While she was there, she also helped co-found the first law
review on women's issues, the Women's Rights Law Reporter. And from there, she began work with the ACLU's Women's Rights Project. And from that position,
she litigated such notable cases as Reed versus Reed, where she wrote what she called the
grandmother brief for sex equality, in which she also listed Dorothy Kenyon, an earlier feminist
thinker, and Polly Murray, one of the most undersung feminist thinkers of our age as
co-authors. And again, this is all before reaching the court in 1993. She had been a part of some of
the most important sex equality cases of the age. And this is really amazing. So Kate, I'm going to
drop off a little bit and let you talk about one of the cases that we covered in our book on reproductive rights and justice struck versus Secretary of Defense.
Could you say a little bit about this case and how important it was to Justice Ginsburg?
Sure. And actually, let me just say one more thing, if I could.
You know, hearing you talk through her early career just brings something to mind, which is that these early, you know, kind of rejections were so generative and that they set her on a different path.
And, you know, they were it was outrageous and unjust that she was denied access to these halls of power that, you know, she was more than qualified to enter.
And yet, you know, sometimes there are those kinds of what feel like failures or rejections can give rise to things that are so much better. And so obviously, she made an incredible career as a law professor and was able, I think, from her purge in the
academy to do the work with the ACLU Women's Rights Project, right, this kind of litigation
campaign that I don't know how she would have managed from a purge in a law firm if she had
been successful in the first instance of getting one of those jobs. Maybe it all would have ended
up in the same way, but I'm not sure. So Melissa mentioned a couple of the cases.
So Frontiero, so Reed versus Reed, the grandmother brief, you know, she files but doesn't actually argue the case, right?
But in Frontiero versus Richardson, that's the argument.
She's there arguing as amicus, and that's the argument in which she says the words,
I ask no favor for my sex, that begins this podcast.
And the argument in its entirety as well worth listening
to. Actually, as are all of the arguments that she did before the court. Strzok versus Secretary
of Defense is not one of them because it was never argued before the Supreme Court, but it's a case
that she very dearly wished could be brought before the court. This was all playing out in
the lower courts in the year or two before Roe v. Wade was decided by the Supreme Court.
And it was a case that involved abortion, but in a very different way. So the captain, who was a plaintiff instruct, was a nurse in the Air Force who became pregnant and wished to continue in her position and under military policy at the time could not, right, was either required to leave her job or to obtain an abortion, actually subsidized by the federal
government, right, by the military, which was consistent with military policy at the time.
And she was a devout Catholic and didn't want to get an abortion. And so she gave birth,
gave the child up for adoption and returned to her position and from that position challenged
the military policy. The case ended up being mooted when I think the Solicitor General,
in conjunction with
military leadership, intervened and implemented a policy change that prevented the case from
actually getting before the Supreme Court. But it was a case that would have allowed the justices
to confront this sort of constellation of issues involving sex equality, both abortion,
and in this case, coerced abortion as opposed to restrictions on abortion, but also
pregnancy discrimination and sex equality at work more broadly. The person with whom she was in a
relationship was not facing any kind of professional sanctions for his participation, as Justice
Ginsburg described it in The Conception of the Child. So there were a number of kind of substantive
avenues that she thought the case kind of opened up. And she, I think,
always really regretted that that was not the sort of first of the abortion cases and one of
the women's rights cases that she had the chance to take to the justices. You know, I think that
Neil Siegel, who wrote the chapter in the book that Melissa and I, along with Reva Siegel, co-edited,
I think, believed in conjunction with kind of conversations that he had with Justice Ginsburg,
that the path of the law might well have been different had that case made it before the Supreme Court. So it's a path
not taken. And there's some great trivia. The Solicitor General who was on the other side of
that case was none other than Irving Griswold, who had been the Dean of Harvard Law School
at the time that Justice Ginsburg was a student and apparently was the Dean, according to the
movie On the Basis of Sex, where he is played by Sam Waterston, asked her, you know, why is she in law school? Why are any
of these women in law school? And Justice Ginsburg replies that she's there so she can learn to be a
more patient wife and understand her husband's career. And some have suggested that she's being
a little bit cheeky in that response, trolling them, as it were, in the 1950s.
And the litigation strategy in Strzok kind of mirrors the path that she took in sex equality, which is in the sex equality cases, she tried to find cases where men were discriminated against and use that to advance a broader principle of sex equality.
And in Strzok, she was trying to advance a broader principle that women should be able to have reproductive autonomy and choose whether to have a child. And there, you know, the federal government, the government was trying to
tell the woman she could not have a child, but she was, again, using that to advance a more broader
principle of choice. So she was a brilliant litigator and strategist and attorney who
really, you know, moved the law in this significant respect that has paved the way for so many women
after her, you know,
after the news of her passing reached.
I think Hillary Clinton tweeted out, you know, Ruth Bader Ginsburg paved the way for so many,
including me, Justice Kagan and her statement on the justices' passing.
She said that Ruth reached out to encourage and assist me in my career, as she did for
so many others long before I came to the Supreme Court, and she guided and inspired me on matters
large and small.
So she was just, again, like opening doors for so many women.
There was also a really sort of funny off-color aside. I guess after she was nominated,
she received a note explaining that she had been known as a quote-unquote bitch,
according to some of the men in her class at Harvard Law School. And her reply is truly one
for the ages and really needs to be on a tote bag, a shirt, a mug, all of the things really.
Her reply was, better bitch than mouse. And I mean, that's the tweet. There it is.
Amen.
Better bitch than mouse. I love that.
All right. Tote bag is coming. We have to get that done. Maybe we could shift gears for a minute and do a quick kind of round robin. I love that. But as a justice, if we want to highlight opinions that are worth noting of hers from her nearly 30 years on the Supreme Court, whether those are majorities, dissents, concurrences, anyone want to start?
I can start. So I would say her dissent in hearing versus the United States, which is part of the series of cases limiting the exclusionary rule.
In that case, the court said the exclusionary rule wasn't available when evidence was wrongfully obtained as a result of negligence in maintaining a police
database. And the court's majority said it wasn't available because the application of the
exclusionary rule would not deter violations. And Justice Ginsburg said that is inconsistent with
the entire promise of tort law, which is, of course, you can deter negligence through sanctions.
And a majority opinion, I would probably say Sessions versus Morales-Santana, which is
a sex equality case in immigration and really, I think, brought the court's immigration
cases in line with the sex equality cases and specifically the justice opinion in United
States versus Virginia when the court had kind of veered away from that
subsequently. So my two are her dissent in Shelby County versus Holder, which is the famous one in
which she's responding to Chief Justice John Roberts, who has argued that there's no longer
a need for preclearance requirements for voting because African-American voting in the South has been
increasing and increasing consistently over time. And it's a kind of racial progress narrative
that he documents. And her response to that is the whole line of argument is a little bit like
throwing out your umbrella during a rainstorm because you are not getting wet. The whole idea,
again, is that this works, preclearance works, and that's why
you've seen this improvement over time. Now is not the time to get rid of it. And, you know,
that is the dissent that sort of kicks off this notorious RBG meme that really came to dominate
the later part of her life. And I think she was really tickled to find herself being compared to
the notorious BIG, and she sort of reveled in it.
The other case that I wanted to highlight is not one in which she litigated or argued or heard as
a jurist, but in which she, as a member of the Women's Rights Project, was an amicus. And this
is a Georgia death penalty case called Coker v. Georgia. And it was about the use of the death penalty
as a penalty for rape. And she argued that the use of the death penalty or capital punishment
more generally as a punishment for rape was not a service to women. In fact, this was sort of
more evidence of the kind of benign paternalism that characterized sex-based classifications.
And what I really thought was
interesting about it, it's not just solely an argument about women's rights and sort of feminism
and the limits of paternalism, but there is an intersectional lens to this because she talks
quite movingly in the brief about the way in which the penalty for rape, including the death penalty, are also meant to sort of sequester white women's purity and chastity from the ongoing threat of black sexuality.
I mean, so she really understands the way in which the legal system inity and purity is being protected because it is both
men's property and perhaps subject to a threat from an external racialized entity. And so I
think it's a really important amicus brief and one that I think did not get a lot of play when
it was first announced, but it's really, I think, remarkable in its breadth. So I would agree with Melissa. My favorite dissent is Justice Ginsburg's dissent in Shelby County.
And just maybe because it was my first experience with the justice, but also just because of its
import in terms of sex discrimination, my favorite majority, seven to one majority in the United States versus Virginia striking down
the male only admissions policy at VMI. And a couple more that I would highlight,
although I agree with everything that you all have mentioned, her dissent in Gonzalez versus
Carhartt, the 2007 opinion in which the court upheld the federal partial birth abortion ban act.
And she just took real issue with the, I think, the substance and the kind of
tenor of the Kennedy opinion, in particular, sort of paternalistic sort of notions about
protecting women, right, from the regrets that they might experience based on their own choices.
She writes that the court shields women by denying them any choice in the matter.
This way of protecting women recalls ancient notions about women's place in society and under the Constitution, ideas that have long since been discredited.
I always wondered whether the sort of, you know, the language was sharp. And, you know,
she sort of conspicuously didn't write, didn't get to write the opinions in the two, you know,
most recent abortion cases out of Texas and Louisiana. And I wondered, you know,
it always felt like a little bit of a loss that Breyer and not Ginsburg wrote those opinions.
And I wondered whether, you know, lingering bad blood about the Gonzalez opinion, because the
dissent was a harsh one, and I think fairly so. And then actually a majority opinions, you know,
she didn't have a ton in some ways, you know, look, she sat, you know, on the left of the
Rehnquist Court and the Roberts Court. And so she was not the median justice who was assigned a lot of the big opinions. She had huge procedure opinions, for sure, vindicates principles of democratic legitimacy and, you know, upholds by five for vote the decision by the voters of Arizona just to, you know, take the process of drawing legislative districts away from the door to federal constitutional challenges to gerrymandering is one of the few ways that remain for voters in states to try to make sort of democracy and kind of legitimacy meaningful.
But it's a great sort of deep dive in constitutional language, constitutional logic, constitutional history.
And it's well and the Senate. and Justice Ginsburg's dying wish and kind of amount to unilateral disarmament since Republicans
are already out there talking about the importance of filling this seat, including the president
himself and Senate Majority Leader Mitch McConnell. So the time is now, like whether we want it to be
or not. And the fight is here, though there will also be fights after November. As guest Ellie Mistal wrote in The
Nation, and I'm just quoting from him here, I would like to mourn her, but even Ginsburg herself
realized there would be no time for that. Her deathbed dictation should not be read as the
fleeting hope bubbles of a dying old lady, but as a dying dissent about what we must do. And he was
referring, of course, to the statement that she dictated to her granddaughter as her strength was waning. And that statement was,
my most fervent wish is that I will not be replaced until a new president is installed.
So, you know, this is where we wanted to take the conversation, you know, the stakes for the court and the replace Justice Scalia, who died in February of 2016. And though that was 10 months out from the November election,
the position taken by Republican leadership in the Senate was that it was sort of it was
necessary to wait until the people spoke in November before the seat was filled. And so
that was a position that was taken then. So that's an important, I think, piece of the backdrop
against which everything is right now unfolding.
So I thought the framing and the way she dictated this sort of dying declaration to her granddaughter was really interesting.
It wasn't that she wanted to, it was her fervent wish that she, her replacement be named after the election. She specifically said a new president, which, you know, maybe
is that a kind of clarion call, a rallying call to the Democrats to get out the vote, like to be
more systematic about turning out the base than they were in 2016? I mean, it's a very specific
call as opposed to just waiting until the election. I mean, I think it is a statement about what
another nominee by this president would do to the court on issues that she cares about. Like,
she is trying to open people's eyes to the practical consequences and the reality about
what that appointment would do. So we've talked a lot about, you know, how the chief justice this
past term was a median justice on the Supreme Court. If, however, President Trump replaces Justice Ginsburg, he will no longer be
the median justice. The median justice will shift to being Neil Gorsuch, Brett Kavanaugh, or, you
know, Amy Coney Barrett or Barbara Lagoa on the 11th Circuit or whoever the new nominee is. So
that is in the abstract what this world looks like. But to make
it concrete, you know, you can think about the consequences for some of the decisions from this
past term. If one of those justices had been on the court instead of Justice Ginsburg,
the DACA rescission would have been upheld as lawful. The president could be deporting
dreamers. The Louisiana abortion law that would have closed two of the three clinics
in the state would have been upheld as constitutional. These are just realities about how those decisions
would have come out. And I think the more difficult question that is harder to pin down is what other
decisions might have been affected as well. Because of course, the media injustice can affect the
negotiations and the direction of the court in ways that are happening behind the scenes that we can't see simply by the vote breakdown. tax case out of New York was 5-4 with the chief justice joining the four more liberal justices
to allow the subpoena and the four other conservatives saying the subpoena could not
proceed. So if Justice Ginsburg hadn't been there, then that vote would have gone the other way quite
possibly. We don't know if the chief would have pulled over one of the five conservative justices
in that hypothetical world to join him in allowing
the subpoena to proceed. We don't know if the Title VII cases would have come out the same way.
We don't know if Ramos would have come out the same way. Changing the media and justice can
affect things behind the scenes in ways that affect the ultimate outcomes.
It may also change, I think, the chief justice's behavior himself. I mean,
I think part of being the swing justice is the position in which he is best
situated to play out his sort of institutionalist leanings. And if he's not in that position,
you know, maybe he does feel more free to kind of join the conservative wing of the court
in a more full-throated fashion. And we don't even get the kinds of nods that we saw in this
particular term.
Well, and he could even do that and frame it in institutionalist terms, at least in his own mind,
by sort of saying better to join and control assignments in the majority that is a strong
conservative six-member majority than to defect and potentially see the law change even more
rapidly. And you can also think about this looking ahead to the next term and the cases that this could affect not only the outcome, but also the rationale. So we have this
major case involving the Affordable Care Act, in which thus far, every Republican appointed judge
has said the amended individual mandate is now unconstitutional. And as a result, some other
provisions in the Affordable Care Act,
like the protections for people with pre-existing conditions, might also fall. So I think that as
this case was making its way after the Supreme Court, we were greeted with, you know, repeated
statements along the lines of, there's just no way this case is ever going to go anywhere.
The arguments are so ludicrous. And it's true the arguments are ludicrous. But once you move the median justice away from the chief justice and towards someone like Neil Gorsuch or Clarence Thomas or Samuel Alito, the world looks very different. overstate how this case, its entire outcome affecting this major law as a country is dealing
with a pandemic could be changed just by this one appointment. There are other significant cases
that the court is hearing, including a bunch of criminal justice cases like the retroactivity of
Ramos and whether individuals who were convicted using non-unanimous juries could have their
convictions overturned. I think people
thought it was possible that the court would say that rule is retroactive. In a world in which the
Chief Justice was a median justice, now it seems like a pipe dream, or this Jones versus Mississippi
about when states can sentence juveniles to life without parole. Again, the possibility of the
court adhering to its prior decisions in Miller and Montgomery now also seems like a long shot.
Or you have cases like Torres versus Madrid, where the question is, have the police stopped someone when they physically shoot
them, but the person is able to continue moving? And these are just some of the issues that could
be changed by a new nominee. And we're not even talking about other areas of law that aren't
currently on the court's docket. So can I ask what we think about, you know, we have talked about
institutional legitimacy, what sometimes felt like this kind of oversimplification or sort of
misapprehension of what that idea might mean in the sort of end of the last term. But what we think,
you know, if we do in a deep way care about the court and its institutional legitimacy, what
rushing a nominee before the Senate and potentially
the confirmation before the election could do to the sort of perception and reality of
the court's legitimacy? Obviously, it would be damaging, certainly. The question is,
do they want to risk damaging the court's legitimacy? Do they even care about the court's
legitimacy? And the one scenario that Leah did not mention that is likely next term is the fact that if this is
a contested election, it will wind up in the court itself. And, you know, that is something also to
take into consideration in the sort of strategy on the Republican side about what to do about this
now vacant seat. Is it to nominate someone and rush them through now in the event that this is a contested election
that will go to the court?
Do you not because you care about the court's legitimacy
and then this is thrown to the courts
because it's a contested election
and we only have an eight-member court
and maybe we're not able to get a decision
because they fracture?
Not sure how that looks, but maybe that's a possibility.
Or they do decide,
and they decide in favor of the president. Who knows? But I think a lot of the scenarios about
what they do all kind of depend on the possibility of the election not being obvious on election
night, the outcome not being obvious, the composition of the Senate, certainly, and then just sort of
what the political will around whatever they're doing is. I mean, we turned out so many women for
the Women's March. Are we going to be this exercise to go stand in front of the court or stand in
front of the Capitol and insist that the people be heard on this question? I don't know.
I mean, there's no question that this will affect the legitimacy of the courts. And I think that's how we should understand the statements that are coming up as
people are pointing out that Lindsey Graham, McConnell and others said, you know, we won't
confirm someone in an election year because it's for the people to choose. Pointing out their
hypocrisy is not because they can be shamed into being
consistent. They have shown that they are simply not capable of shame. It is instead to highlight
what it is they are doing. It is a transparent power grab. They are just slashing and burning
institutions, norms, procedures, left and right, all in the name of preserving their own power and pushing
through policies for which they lack democratic consensus and a democratic warrant. Melissa
mentioned the possibility of a contested election. That's something that we are seeing with the
president's campaign, attempting to limit voting and discredit absentee voting in Republican
legislatures, refusing to loosen up restrictions on absentee voting, Republican legislatures refusing to loosen up restrictions on absentee
voting even in the midst of the pandemic. We're seeing the president destroy norms of institutional
independence and deference to expertise in the response to the pandemic. We're seeing them try
to destroy the Affordable Care Act, which they couldn't do through the democratic process,
now in the courts. This is what they do. And they are putting the court in the continued
crosshairs this time, just like they have before. I mean, Mitch McConnell has now,
if they confirm this nominee, stolen two seats on a court through, you know, conveniently
naked, obvious, transparent changes to old bipartisan rules of nomination, not holding
hearing for Merrick Garland, and now insisting that that rule applies only when, you know, the presidency and
the Senate are in different hands. No, it doesn't. Like you frame that entire rule as the people need
a say in determining who the next Supreme Court justice is. That principle applies no matter
whether the president and the Senate are different parties. It means that people get a say in determining the next Supreme Court justice. And it is just appalling to see the absurd things that people like Ted Cruz and others are saying, like, we need a nine-member court in an election year because an eight-member court might not be able to resolve election issues. That was true in the 2016 election, of course, when you were totally okay with an eight-member court. So all of these arguments are just transparently ludicrous.
And pointing out their transparency and hypocrisy, again, is not because I think Ted Cruz has a shred
of principle or integrity to him. It is instead to expose what is happening, which is, again,
they are totally content just burning everything to the
ground if they can hold on to power for another day. The unfairness as opposed to the hypocrisy
somehow seems to me to be something that people could mobilize around. And the other thing that
I think, I mean, I think you're completely right. This idea that you could, you know,
write this revisionist history in which the salient feature of 2016
and the refusal to consider Garland was the, you know, split party control of the presidency and
the Senate is sort of facially absurd. But it is also the case that it is not as though there is
an election looming. Like, obviously, we're closer to an election than we were in February of 2016.
The election is already happening, right? So states
have started voting. So in four states this week, people started voting in person. There are
hundreds of thousands of absentee ballots. We may actually be in the millions now that have already
been mailed. And over the course of the next week, I think something like 20 states are going to
start having early in-person voting. So, you know, even if their arguments held some water in ordinary times,
and I don't know, I don't think they do, it can't possibly be the case that if democratic
legitimacy means anything, you can, you know, ram through a nominee while we are actually in the
midst of an election in which the people will have some voice. That's the question. Like, do they even care about Democratic legitimacy? Yesterday at a rally
in Minnesota, he not only talked about the seat, I mean, he has been anticipating filling this seat
for over a year now and nakedly talking about her demise well in advance of yesterday. And
yesterday in his rally, he talked about being able to fill
not one seat, not two seats, not three seats, but actually four. I mean, so he's thinking of a
complete takeover of the court. And this is just the first domino that will set off a chain reaction
in his view that leads to a gold-plated court that looks like
Trump Tower. Yeah, I mean, this is what they have wanted to do. Like, they have wanted to pack the
courts, and they are packing the courts. Every one of the current seats on the Supreme Court has
become vacant in the last 30 years when Republicans won one of the popular electoral votes of seven,
and yet they might fill six of the nine seats. And
again, it will be with two stolen seats that were stolen on the basis of just ludicrous changes in
procedural rules. You know, Mitch McConnell trotted out this made up Biden rule, which
now I'm remembering what was referring to statements by Joe Biden about a hypothetical
future nomination by a Bush administration after the contentious
nomination and confirmation of Clarence Thomas. So it wasn't about an actual vacancy or an actual
nomination. That rule never existed. And it defied historical practice. And yet Mitch McConnell was
keen to invent it. And now he's yanking it away. It's just, it is truly absurd how brazen
they are and they have been and how successful they have been at being so brazen and at packing
the court so that they can, you know, do what they want to get done. To kind of tie this conversation
to both the notorious RBG more broadly and to the statement that she dictated in her final days to her granddaughter, is there a way to somehow channel the energy that RBG emanated out into the world
to actually try to implement her desire that her seat not be filled, at least not right now,
right? At least not in advance of the election. I think maybe the question gets different between
the election and the inauguration, but at least between now and November 3rd in that, you know, you have.
So the Notorious RBG meme, you know, our local independent bookstores because the amount of
children's inspiring children's stories that have been spawned by the Notorious RBG and sticker
books and temporary tattoos and the list goes on there is you know but so far like apart from
moving product and inspiring people um the energy hasn't been challenged and sort of put to kind of
political purposes and a is their way to do that You know, so to get a younger generation mobilized in ways that they might not have been because
they were not as excited about Joe Biden as other potential Democratic nominees.
So that's question one. And I think question two, you know, middle-aged white women who
actually voted, the majority of them, for Donald Trump in 2016, could somehow they be mobilized to go get
their people. And in a way, by this and by Justice Ginsburg's, you know, sort of dying words, in a way
that could, on the margins in a closed election, make a real difference. From your mouth to God's
ears. I mean, I think that the best people can do is talk to other people about it, devote an
increased focus to Senate races to try
to take back the Senate, and to, again, do what they can in the lead up to the election and to be
as loud and as vocal as they can about what Republicans are doing to the Supreme Court,
the stakes of this nomination. And, you know, it is easy to despair, given again, how unprincipled
and power grabby the Republicans have been. But if you just resign yourself to that given, again, how unprincipled and power grabby the Republicans have been.
But if you just resign yourself to that fate, then we will definitely have lost.
Better bitch than mouse.
Exactly.
Just the thought of this feminist icon being replaced by this rank misogynist who brags about sexually assaulting women is just very difficult for some of us.
I mean, like the same week that she dies, yet another woman comes forward to say that
the president has sexually harassed her. I mean, like how many of these sexually assaulted her,
sexually assaulted her, Melissa, right? I mean, I can't even keep up. I mean,
how many of these and it's of no moment. I mean, we're so anesthetized to it. I mean, you're exactly right, Leah. The idea of her being replaced by this person is just vomitous and gross. All right, let's end on a high note.
So thank you, Anne, for joining us.
Yes, Anne, we wanted to have you for a long time. We're sorry that this is the occasion, but thank you so much for joining us. Yes, and we wanted to have you for a long time. We're sorry that this is the occasion,
but thank you so much for joining us.
Thank you for having me.
And thank you to all of our listeners
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and Eddie Cooper, who does our music, including putting Justice Ginsburg's words to sound. you