Strict Scrutiny - Justice, Justice Thou Shalt Pursue

Episode Date: July 19, 2021

Melissa interviews Berkeley Law Professor Amanda Tyler about the book she co-wrote with the late Justice Ruth Bader Ginsburg, Justice, Justice, Thou Shalt Pursue. The book includes Justice Ginsburg's favorite opinions she authored, along with stories of her life, family, and career. Professor Tyler shares some of those stories as well as reflections on her working relationship and friendship with the justice. This conversation was originally an event put on by The Beverly Hills Bar Association and Writers Bloc Presents. Follow us on Instagram, Twitter, Threads, and Bluesky

Welcome back, listeners. This is a very special episode of Strict Scrutiny. In this episode, I interview Berkeley Law Professor Amanda Tyler about her book, Justice, Justice, Thou Shalt Pursue, which she co-authored with Justice Ruth Bader Ginsburg, for whom she also clerked. This conversation was recorded on March 23rd, 2021, for an event that was hosted by Writers' Block and the Beverly Hills Bar Association. We're grateful to both organizations for making this audio available as a very special episode of Strict Scrutiny.

Thanks so much. 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. Amanda, this book is fantastic. I love it very much. My puppy loves it. He's dug into it,

as it were. And I wanted you to give us a little sense of the origins of this project. How did you and the Justice come to write this book, put together this selection of so much of her life's work? The book started with Justice Ginsburg's visit to UC Berkeley in the fall of 2019. Interestingly, she was supposed to come earlier that year, but because of the discovery of lung cancer in December of 2018, we had to postpone her initial visit. She resisted postponing it because the origins of the visit were to honor Herma Hill Kay, our former colleague at Berkeley, who I know was a great mentor to you, Melissa, and was a longtime friend of the justice. They had actually been friends for probably over 50 years. And they, together with a third co-author,

wrote the very first casebook on gender discrimination and the law. So they essentially founded the field in the early 1970s and had this robust, wonderful friendship that spanned all of those intervening decades. The occasion for the justices' visit was to honor Herma Hill Kay, who we lost in 2017. And that was one of the reasons why Justice Ginsburg didn't want to postpone. It was really important to her to come to Berkeley and to honor Herma's memory in an event where she spoke about Herma. And then we sat down in conversation. Eventually, she was able to come in the fall of 2019, in October specifically. And we were able to sit down. But what a lot of people didn't see, but I got to see, was that behind the scenes, the justice was still not at full speed. She was still undergoing cancer treatments.

And frankly, it was really remarkable that she was able to travel at all. But that, again, is how important it was to her to honor Herma. And the book comes out of that same loyalty, that same friendship, because we learned when she visited that the University of California Press was considering publishing Herma's final work, which she had completed in the last, say, 10 years of her life. It was a labor of love. It was a chronicling of the stories of the first American women law professors who had preceded Herma and Justice Ginsburg into the academy. Now, we also knew that several publishers had declined to publish the book, and the justice was very upset about this. She had written the introduction to the book, and she really wanted to see this history published and preserved. So we got the idea that maybe we should talk to the press and see if they'd be interested in us turning our conversation into a book project. And we would be happy to publish it with them,

so long as it released alongside Paving the Way, the first American women law professors by Herma Hill Kay. And to our great delight, the press went for it. And I'm very happy to say, and if you're watching on video, you can see the two books side by side over my shoulder, that they are in fact releasing together this spring. And I know the justice would have been so pleased to know that and to see this. And I'm just sorry that she's not here for this. I do want to say for those of you who are watching and listening that Melissa Murray has an afterword in Herma's book that is really important and really wonderful. So I hope that people will not just be looking at our book,

but also be looking to read Herma's book. Well, I have a copy of Herma's book just over my shoulder here. So it is what she's with us always. And I'm part of this conversation as well. But what a fantastic story to think about Justice Ginsburg using her life's work again to advocate for another woman. And so that's a theme, I think, in this book, thinking about the way in which you might use the law to better the circumstances of other people. And so the book is organized into three particular themes. One focuses on Justice Ginsburg's work as an advocate with the Women's Rights Project of the ACLU. The second core is her work as a justice

on the court. And then the final third of the book are remarks and speeches that she gave in recent years before her death. And I want to focus on the set of cases that you chose from her work as an advocate and her work as a justice. She has probably written thousands of opinions from her time on the D.C. Circuit all the way through her time on the court. How did you manage to call this to just a set of six to seven cases? I ran the numbers recently. She wrote over 700 opinions on the D.C. Circuit and about 480 on the Supreme Court, over 40 years as a judge. So that's a lot of opinions. She picked the four opinions that she wanted to include, and then she picked the cases from her advocacy days that she wanted to include. That was all her. And in fact, as recently as this summer, she had written, and it turned out sadly to be her final opinion, a wonderful dissent in a case involving the expansion of the exemption to the contraceptive mandate in the ACA.

And the court upheld an expansion of the employer exemption to providing contraceptive coverage to women. She dissented. That case is called Little Sisters of the Poor. And it's such a powerful dissent. I remember I reached out to her and I said, hey, boss, I think I always called her boss or the justice. I think we should add this to the book. This is a really good dissent her and I said, hey, boss, I think I always called her boss or the justice. I think we should add this to the book. This is a really good dissent. And she said, no, no, we're sticking with the four. I picked the four opinions that I want. If people read nothing else, I want them to read these four. So that was all her. She did say, and this is earlier in the book in our conversation, that asking her to pick her favorite opinions was a little like asking her to pick her favorite grandchildren, and she would refuse to do that.

But if you pushed her enough, eventually she would never say what her favorite grandchild was, but she would say what her favorite opinions were. And so that's what's in here. Well, so the four cases from her time as a justice are actually really interesting. So one is United States versus Virginia, which is probably the majority opinion for which she is most well known. That was the case, the VMI case, in which the court struck down the state of Virginia's policy of having a separate all-male institution of higher education. But the other three cases that she selected here are actually dissents. So she chose her dissent from Ledbetter versus Goodyear Tire. That's the Lilly Ledbetter case. Shelby County versus Holder. That was the Voting Rights Act case. And then finally, Burrell versus Hobby Lobby. So that's another case involving Obamacare. What do you make of the idea that she saw these dissents as opposed to the many majority opinions that she had written to be among the most important in the corpus of her life's

work? I think that the dissents that, you know, there's a reason they're in there. We were working on this in what turned out to be the last year of her life, and she knew that the end was not far off. So she was thinking about this book as setting forth how she wanted to be remembered. And we were talking earlier about how she thought about other people and she liked to use her position to help others and advance others. Well, here, I think what she's doing is using her position to say, hey, there's work still left to be done. And I need the rest of you to pick it up and continue it. So these dissents are a way for her to lay out where she thinks that we've erred, we've gotten off track. Maybe we've not progressed fast enough. Or I think it's fair to say with respect to her dissent in Shelby

County, we've walked backward. I mean, the majority in that case, for those who aren't aware of what was involved, they struck down one and effectively gutted two provisions, arguably the most important provisions in the Voting Rights Act, which is arguably the most important civil rights legislation in American history. And she writes a very, very powerful dissent. I like to call it a dissent for the ages that really lays out how bad a decision this is. And I think she wanted people to keep reading that. She often said of her dissents that she was writing for the future. Yes, she would have loved to win in the moment, but if she was going to lose, she was going to lay out a roadmap for future

generations to come back and reconsider these issues. And so I think that there was certainly a method there and a very conscious decision to include the dissents from the later years where she thought the court was maybe on the wrong track. So that dissent in Shelby County versus Holder actually put the justice in an entirely different trajectory. So as you say, it was a dissent for the ages, but it didn't just resonate with the sort of standard group of court watchers, the Adam Liptax, the Jess Bravens. It really resonated with younger law students, including one of the students that I now know from NYU, Shauna Kisnick, who created a Tumblr account that she called the Notorious RBG. And she began by

chronicling this particular dissent. And then people were adding to it and adding to it. And before long, a meme was born. And suddenly, Ruth Bader Ginsburg, Kiki from Brooklyn, had turned into the notorious RBG. So can you say a little bit about this part of her life where she really became a kind of liberal icon? How did she wear that particular mantle? Was it surprising to her? Did she get a kick out of it? I think it was surprising to everyone. I know it was surprising to her. For those of us who had the privilege and tremendous honor of clerking for Justice Ginsburg, we tend to classify ourselves as pre-notorious and post-notorious. So I'm older, I'm pre-notorious. And for those of us in that camp, we were so surprised by this. I mean, we knew that she was a rock star in terms of the law and all that she had done and all that she stood for. We were delighted to see that the rest of

the world was finally figuring this out. But we also knew her as somewhat reserved and not someone that sought out the limelight. And so that's what made this also just, I don't know, amusing, surprising, all of those things for us. For her, I think she was quite surprised as well. But I think she came to embrace it. You know, when she came, there are pictures in the book from our conversation, when she came to Berkeley, she was carrying, and she often did this at events, a book that said, I dissent and has her face on it. And when we sat down, I noticed she made a point of laying it down with the side out so the audience could see that it said, I dissent. And I think it says Ruth Bader Ginsburg makes her mark

or something to that effect. So she embraced this and had fun with it. But at the end of the day, I think it was because she thought this is something that is allowing me and what I stand for more generally, it was not about her, but what she believed and fought for.

It's now reaching a broader audience. And that is what I think she really liked about it. And I can tell you the last time I was in her chambers, I remember looking at the pictures on her desk. We were thinking about what pictures to include in the book. And there were multiple pictures, but one in particular of her in her robe with a collar standing with a little girl who was dressed up like her. And I thought about including that. In the end, I chose a different image I'll talk about. But I think that's a window into how she felt about this. She treasured the idea that young girls and young kids of all genders were looking up to her and looking up to her example of speaking out, dissenting is okay,

calling out people when you think they're not doing the right thing is important. And when we were doing the book at the end, I did add a few images after she passed away. And I decided to add an image that I found of a little girl dressed up as Supergirl. And she came to pay respects to the justice and she's saluting the justice. And I just, I love that because it embodies this inspiration that Ruth Bader Ginsburg was for the younger generations, which is so remarkable, right? This is a woman who was in her 80s. But I think she really liked that. And I think, if nothing else, I hope that the book helps.

It's around to help inspire the next generations to pick up and continue the work that she did. So I definitely think that is something you've accomplished here. One, the book is easily readable. My 13-year-old has taken a look at it. She enjoyed it very much. So it is a gift that you can give to a wide range of people. But I want to come back to the question of the meme because I want to suggest that maybe her interest in this Notorious RBG meme actually went beyond. I mean, there is obviously this sort of

public and external role that it is playing in bringing in a new audience. But I wonder if there was something more calculated about it. And I will just sort of say one of the things that I think had been happening in the 1980s around the conservative legal movement was that they were really directing their opinions to the law schools and the law students. And no one on the court did a better job than that on the conservative side than her friend, Antonin Scalia. And so I wonder if this was her opportunity to sort of do the same thing, only to galvanize a new generation of liberal lawyers in the law schools by speaking in language that I think they would have liked. And I go back to that incredible line in the Shelby County versus Holder dissent where she says, throwing out the Voting Rights Act because we've actually made progress on voting rights is

like throwing out your umbrella in a rainstorm because you are not getting wet. And like, what a perfect line. And again, one that my students come back to repeatedly. Do you think it was more calculated than that? I don't know that it was calculated, but I certainly think for a lot of the reasons you've suggested, she was only too happy to embrace it and run with it because it had a message getting out to a very broad audience, whether law students or even the general public, of these are what our core values should be. This is what we should be fighting for. And that was something with which she was completely on board. See it that way. You know, that line in Shelby County is so magnificent, but it's emblematic also of just how much care she took with her writing. If you read all of her opinions, what you see is a very careful, meticulous, very artful use of words. When you were her law clerk, we would go back and forth

sometimes 20, 30 times on a draft opinion. Every word had to be doing something. And I can tell you that when I was sending her pages from the book to mark up over the summer as late as August, she was still sending me back pages that were just covered, covered in edits. And I'm a little embarrassed to admit that because I think it suggests that maybe I hadn't progressed as much as I thought in those 20 years. But it does show that she was still taking so much care with the words. Every word had to be doing something. You know, you're reminding me also, though, of when we get back to the Notorious RBG, that she, again, she didn't run away from it. She did embrace it.

Now, how calculating that was, I can't say. But she was also amused by it. And so I'm remembering, actually, that you were the first person to give me a notorious RBG t-shirt, complete with her with the crown on. And I had it. And she came out to Berkeley to visit. This is a prior visit when she came and did a talk. And I was with her on the stage afterward. And a law student, a Berkeley law student, was wearing one of these shirts and came up to meet her and asked her to sign the shirt. And the justice afterward turned to me and she said, I don't have one of those shirts.

Do you have one of those shirts? And I said, well, actually, I do, justice. And she said, well, can I have your shirt? I remember I said to you, Melissa, I know it's really bad form to re-gift, but I'm thinking you're going to be okay with this. And so I did, in fact, re-gift the shirt you gave me to the justice. And what I learned afterward was that when she got back to D.C., she ordered a case of them and she would give them out as gifts. So that gives you an indication of how she did embrace it. I'm happy that you gave her the shirt off your back.

I'm happy that I could be the conduit to that. I will also say, I saw her in one of the last events, I think one of the last public events she did before the pandemic. And it was at the American Jewish Museum in Philadelphia. And she was receiving their Lifetime Achievement Honor. And at the dinner, I had given remarks about her there. And at the dinner, I went up to her

and I was explaining to her, you know, we have this podcast, Strict Scrutiny. We talk about you a lot. And she was like, why would you do that? Why would you have a podcast? Like, don't you have other things to do? And I'm like, oh, I have tenure. And she's like, oh, okay, that makes sense.

You should have a podcast after tenure. But we sent her a Strict Scrutiny sweatshirt that she could wear when she was working out in the gym. And I got a very lovely note from her thanking her for that. So I like to think of her in the gym doing her push-ups, her real push-ups, as she says, wearing that sweatshirt. One set of materials that you include in the book is sort of surprising. And I thought very personal. So you have included here not just her work as an advocate or justice, and we can talk about her advocacy as well. But there are a set of remarks

of speeches that she made in recent years. One is a speech commemorating the legacy of Louis Brandeis, who was, of course, the first Jewish justice of the United States Supreme Court. Another one is a set of remarks that she gave at the Genesis Foundation in which she noted the presence of important Jewish Americans throughout history, including Emma Lazarus, who of course penned the very famous poem, The New Colossus, that is engraved on the pedestal of the Statue of Liberty. And then finally, she offers a set of remarks that she gave at a naturalization ceremony for new citizens. And I'd like to think that there's something of an arc there and that there is something meaningful to her. And she was trying

to tell us a little bit about her own personal circumstances and how important it was for her to not only be a woman who identified as Jewish, but who very much identified as a first and second generation American and the daughter of immigrants. Can you say a little bit about how she chose those materials? I think you've highlighted what the thought process was that these are speeches that she gave at the end of her life. We wanted to publish things here that hadn't been published before. She has an earlier book, a very wonderful book called My Own Words that includes a lot of earlier speeches. So we didn't want to replicate that. We wanted to have new material in here. And what you get

from the material is a woman who is reflecting on the arc of her life. And that's what I think makes these speeches especially poignant and special. She's thinking about her faith and she's thinking about, you know, in one of them, she talks about who her role models were as a kid and particularly female Jewish role models. She also talks about Anne Frank in there. And you get a feel for her identity through her background and through her family. The discussion of being a first and second generation American is enormously powerful. And you have to think about the setting in which she's delivering it. She's welcoming the newest Americans into the citizenry as she talks with great pride of being the child of an immigrant and the grandchild of an immigrant. And she talks about the American dream.

She talks about the promise of America. Only here, she says, can in one generation, the child of an immigrant sit on the Supreme Court, the daughter of a bookkeeper in the garment district sit on the Supreme Court. That's the dream. That's the promise and the potential of America. And I think she's celebrating that and reminding us in a time when people are honestly, in many cases, forgetting that, that this is the America that she knew and this is the

America we should be celebrating. And that is the final entry in the book, Save the Afterword, which unfortunately, tragically, I had to add at the end. That talk at the naturalization ceremony is so uplifting. It's so beautiful. I would encourage people to watch the video of it because it gives you goosebumps. That's her at her best. And it's a perfect encapsulation of everything that comes before it in the book.

The book also talks about her advocacy, and it notes that the first case that really set her on her trajectory and dismantling sex based discrimination, reading women into the 14th Amendment is perhaps an unlikely candidate. It's a tax case called Moritz versus Commissioner of the IRS. And it came to her attention because her husband, Marty, who is a very famous tax lawyer, brought it to her attention and said, this this is the case for you. So can you say a little bit about Moritz, which I think gets buried a little bit in her legacy? It's a wonderful case because it involved a tax provision, as you say, and before people get bored and their eyes glaze over, tax law is actually pretty interesting. You just had to talk to Marty Ginsburg and he would convince you that tax law was where it was at. And I worked with her on tax cases. I loved working with her on tax cases. The case involved a provision that allowed everybody except a never married man to take an exception for caring for a family member in the tax code.

And so a never married woman could do it. A divorced man could do it. A divorced woman could do it. But a never married man or married man or woman could do it. But a never married man couldn't. And this makes no sense. So Marty is reading that he used to read the sheets that came out of the tax court, and he sees this. And the plaintiff had represented himself in the lower court and wrote a one-page brief that said, this makes no sense. And Marty later gave a speech saying it was the best legal brief he'd ever read because it was short and to the point. And he handed the tax sheets to his wife and said, we ought to take this. And she apparently at first said, I don't do tax cases. And he said, oh, well, have a look. And then a minute later, she comes back into his office and says, let's do it. And what's so great about the

case, which is featured in the movie, it's the centerpiece of the movie on the basis of sex, is that they win it. They don't have to get to the Supreme Court because the law gets changed in the interim. They litigate it together. And then in filing the case before it's mooted, before the law is changed, the government files a petition with the Supreme Court seeking review in which they list every single law in the United States Code that differentiates between men and women. And as she talks about in the book, in our conversation, she says this was a pearl beyond price because there it was for us, the roadmap of all the work that we needed to do.

And they proceeded on the legislative front and they proceeded in the courts. So Moritz really just launches all of this. And Marty steps to the side after their win and says, you know, you take it from here. I'm going to go back to doing tax law. But she wound up doing a lot of benefits in tax cases because those codes were rampant with gender discrimination and gender classifications. So it really was the start of something. You know, what's interesting is in the movie, on the basis of sex, when she gets up to argue, they split the argument. She hesitates. And I remember asking her, that didn't happen, did it? I mean, because the person that I knew was always impeccably

prepared. She was never at a loss for words. She was always very careful about the use of words, but never at a loss for them. And she looked at me and she gave me one of those, that's a dumb question looks, in a very polite way, I should say. But she said, of course it didn't happen. I didn't stumble. I got right up there and I argued. But I've heard more recently from other clerks that Marty liked to tell the story that while he was up arguing first, he could feel two eyes sort of burying into the back of his head because he got nervous

and she was getting increasingly angry that he was using up some of her time for the oral argument. So in the end, they win, and it lays out that roadmap for everything that comes. It's not surprising that so many public benefits cases would have been a huge boon to her because, as you say, they're replete with gender discrimination. And that's not surprising either because so much of them are meant as income replacements for the family, which is the way in which we really think about privatizing dependency. But her family situation was perhaps unusual, certainly for the time, because you had

a husband and wife who very much understood themselves as co-equal in terms of professional aspirations and also in terms of their work in the house. And they had a very distinct division of household labor. So can you say a little bit about Marty Ginsburg and where can we find more of him? Marty Ginsburg was a gem of a human being and their love affair was just a grand love affair. It was a joy to watch those two interact. They loved and respected each other so deeply. They were each other's biggest fans. Marty was a huge deal in his own right. He was one of the greatest tax lawyers of his generation. And yet, if you ever talked to him, it was all about her. He was so proud of all

that she had accomplished. You know, Ron Klain has said publicly that Ruth Bader Ginsburg went on the Supreme Court because of Marty Ginsburg, because of all the efforts he made to bring her to the attention of President Clinton. So he really was her biggest fan. And she talked, and there's a lot of this in the book, she talked about how important it was to him to share the family, the family work. I don't know that they would call it work, but raising the children and cooking. Marty was a great chef. He actually has a cookbook that was compiled of all of his great recipes. They are unbelievably intimidating. I will just tell you the baguette recipe is five pages, single spaced.

I'm not even going to try it. There are a few in there that I can do, but not many. She was apparently a terrible cook and only too happy to step aside and give him the kitchen. But he was hugely involved in the raising of the children and hugely supportive of her career. And she says, she talks about this in the book, that that was a crucial component to enabling her to accomplish all that she did, that from day one, he had her back and he was in her corner. And it played out in all kinds of wonderful ways.

We had them to dinner once, the first time I remember, and her favorite drink was Campari and soda. But a lot of people don't have Campari in their bars and, you know, in their homes or even at events. And I baguette and he had to make them himself. And he had a flask of Campari because he wanted to make sure that his wife would have her favorite drink. And I will say as an aside, one of my proudest moments ever was when he noticed that I had prepared because I had been taught to always be prepared by her. And I had a bottle waiting for her. But that's the kind of care that he took for her. And the year I clerked for her, unfortunately, was the first time that she had cancer. And over the course of the year, we saw him constantly coming to chambers saying, you're working too late, taking her home, planning very special meals to help her keep her weight

up. It was just something really special to be able to see. What was it like actually being there and working with her? I get the sense that she was a very dogged worker. If she had to be taken home and forced to eat elaborate French meals, she must have been very devoted to her craft. But what was it like for you and what sorts of lessons did she impart to the clerks with whom she worked? She was incredibly demanding, but in all fair ways. Her work ethic was second to none, and she expected the same from her clerks.

She strived for excellence and pushed us, again, in very healthy, very fair ways to meet those expectations, to be excellent ourselves. I've likened clerking for her to playing on a sports team with an elite athlete. Give it your Michael Jordan or your Megan Rapinoe. I'm a soccer player, so I like that reference. She really brought you up with her and raised you to be your very best. But it meant that you had to work hard and it meant that you had to be very careful in calculating in your work, very thoughtful. Again, in the writing, is every word in here doing something or something superfluous? Is this exceptionally clear? She liked opinions that someone, whether a trained lawyer or not, could pick up and read and understand.

They had to be accessible. And I think you see that in the opinions that are in the book. She was very thoughtful about the law. These are perhaps the two most important lessons she taught us. One, to think of the law as a force for good and as a vehicle for opportunity. So she celebrated that the law and the Constitution itself had evolved and had evolved to become ever more inclusive, to bring under its protections groups that had been excluded in the past. That was something we should celebrate, she said, and she does that in her VMI opinion. She talked about how important it was for the law to enable all persons to achieve their full human potential. So that was how she taught us to think about the law. She also impressed on us the importance of thinking about how the law affected real lives, how it affected the lived experiences of real people.

And I've been thinking a lot about this lately. I taught a case last week that reminded me of a Fourth Amendment case that we had the year I clerked for her called Illinois versus Wardlow. And that case involved the question, she didn't write an opinion in that case, but she dissented. And I'm so glad she did. That case involved the question whether fleeing from the police is suspicious activity. And she thought through what it's like for some people to encounter the police. And remember, this is 20 years ago. This is not last summer. And she thought through what it's like for some people to encounter the police. And remember, this is 20 years ago. This is not last summer. And she thought through, there are plenty of good reasons why some people might see a police officer and want to turn around and run the other way. And so she was with the camp in dissent that said, that's not suspicious behavior that warrants

a police stop. That's an example of how she thought about how important it was to think about these theoretical questions that the court was deciding, but how they play out in the real world. And you see this in her opinions when she writes. So in Ledbetter, for example, a case about pay discrimination, she writes about how hard it is for women in the workforce to uncover pay discrimination and how even if they do, they might be hesitant at first to complain about it because they'll be labeled a troublemaker. And for a woman who's trying to break into an industry, in that case, Lily Ledbetter is the only woman in her management position, you pause and you think before you start making

trouble and complaining. And I think she went out of her way, whether through her own life experience or trying to understand the experiences of others, to relate to the lived experiences of Americans when she was thinking about what decision to render. wake of her death, there was, I think, a lot of very much close looking at her record, perhaps even some criticism about what some saw as sort of gaps in her record. So for example, some argued that although she had been very dogged on the question of women's rights, her feminism wasn't necessarily intersectional, didn't really think about the needs of women of color or communities of color. It was noted that although she'd had a very strong record for hiring female clerks, she hadn't had as robust a record for hiring clerks of color. How would you speak to those who had criticisms of her toward the end

and saw her legacy as perhaps more limited than you see it? I think, you know, anytime you take stock of someone's legacy, you're going to find things that could be better. I just think that's almost a universal truth. You know, I've written a couple of books on how I thought the Supreme Court got the Hamdi versus Rumsfeld decision wrong. She joined the judgment in that case. So I have gone on record criticizing some of her votes. I teach a case in civil procedure involving removal jurisdiction, and now everyone is going to have their eyes glazed over. She wrote for unanimous court in that decision, in that case. And I teach that to my students, and I teach it as wrong. I think it was a terrible decision. I never had the courage to tell her that. But she does. She did know my views on on Hamdi. So, of course, you're going to look back over the record and race, there are a lot of things to like. So there's the dissent in Shelby County, which is extraordinary. There's her joining the opinion

of the court in Grutter, which upholds the affirmative action program at the University of Michigan's law school. And she writes separately in that case in 2003, and she highlights then how conscious and unconscious race bias are still very much with us. She talks about how rank discrimination is still with us and it's holding us back from achieving our pure and best ideals. So, you know, she's she's writing about this and she's seeing this and complaining about it. I mentioned a Fourth Amendment case where I thought she was on the right side of things. She also was in dissent in Strieff and joined most, perhaps she should have joined all, of Justice Sotomayor's extremely powerful dissent in that case, which was also a profiling case with racial overtones. You know, she voted with the liberal bloc in the DACA cases. She dissented in the

travel ban cases. She joined Justice Breyer in an opinion in a dissent in a case called Glossop versus Gross, where he called for a reevaluation of the death penalty. Early in her career, she wrote a brief in a case called Coker versus Georgia as an advocate, arguing that the death penalty was not appropriate in rape cases because of the racial aspects of how the sentence is handed down in those cases, typically with a black defendant and a white victim. You know, she's been criticized for her record in Native American cases, but her final vote was in a case called McGirt last term, with the majority upholding a really momentous claim of tribal sovereignty. So there are, sure, there are going to be cases and things about her life that maybe on reflection she might have done differently.

But there's a lot in there that's really important. And I think part of this larger legacy of opening up opportunity benefited women as a group, but specifically women of color. Her point with the male plaintiffs was that men were as restricted in their life choices as women were by these laws that put women in the household and put men in the workplace. And that is something I think that women of color can think about very deeply because we are more often, perhaps than our counterparts, more likely to have family lives that don't necessarily hew to the traditional breadwinner, homemaker model. And so, again, I think there's a much more expansive way to understand her jurisprudence and her advocacy and ultimately her legacy. There are a number of fantastic questions in the queue. Robert Altschuler wants to know when she was appointed to the D.C. Circuit in 1980 by President Carter,

and that was part of Carter's whirlwind push to democratize and diversify the Article III judiciary. Did she ever see herself at that point in time serving on the Supreme Court? And of course, she was appointed in 1993, but there was a long time before that. Did she ever imagine that this would be possible? I'm not sure. What I can say is I know she told a number of her clerks, including me, that she loved being a judge on the DC Circuit,

and that if she'd never been elevated to the Supreme Court, she would have been very happy. She really loved being a judge. And I think one of the things that she loved about it was that it gave her the time to really carefully think through problems. And it gave her the time to very meticulously write her opinions. So was she thinking about that? I doubt it, honestly.

I never asked her that specifically. But if you think about 1980, there's never been a woman on the Supreme Court. So we get O'Connor soon thereafter. But then it's just Justice O'Connor. So I doubt it. I mean, I bet it was similar. I did ask her, and this is in the book, did you think about being a lawyer when you were a little girl?

And she's writing articles for her school newspaper about the UN Charter and Magna Carta. And she says, no, because women weren't there. So it's entirely possible that she had the same thought about the Supreme Court, but she did love being a judge. The D.C. Circuit was also where she met her co-patriot, I guess, road dog, if you will, Antonin Scalia. And they became firm friends at the D.C. Circuit. And that continued when they were both on the Supreme Court. Can you say a little bit about their unusual friendship? Much has been said, but is there anything new to say or that you know from behind the scenes? I don't know how much of this is new. I mean, I can certainly tell a really funny story about the two of them that I haven't told

before, but they both talked a lot about their friendship and how it was based on common ground. So they both loved their families. They both loved the opera. They were both from New York. He was from Queens. She was from Brooklyn. And they both loved this country and they perceived one another as loving this country and revering our Constitution. And I think that was genuine. You know, Justice Scalia said to one of his law clerks once, some things are more important than votes. So he would send her flowers on her birthday every year. And the clerk asked, why do you do that? She never gives you any votes. And he said, well, our friendship's more important than that. But they did, they disagreed vehemently on all things constitutional. I think about the year that I clerked for her, there were so many five to four

decisions in constitutional cases. And I can only think of one where they were together. And that was a case called Apprendi, which was one of those cases, it's a sentencing case that said, that held, and they were in the majority, that a jury has to decide every enhancement in a sentencing case. And that's one of those cases where the justices were all over the place. More often than not, almost always, they were on different sides of cases. There was a VAWA case that term, there were a number of abortion cases, the court reheard Miranda that term. There were all kinds of huge blockbusters. But I think because they took each other as having good faith and loving the country, same as the other, they never became bitter. And the disagreement was

never personal. They used to say, we attack ideas, not persons. And actually, I think she really came to enjoy having him as a foil. She spoke at his memorial service and she talked about how important it was to enhance her great majority opinion for the court in the VMI case, striking down or holding, I should say, that Virginia has to open up the VMI great military institute with a storied history to women. She talks about how Scalia's lone dissent, I'm sure she would have preferred to have him join her, but his dissent really prodded her into making her majority opinion better. It prodded her to think through her arguments more fully. And in the end, she says the final draft was so much better than her original draft because she was engaging in conversation with his dissent. But they also

had a relationship that was similar to her relationship with her husband. Her husband gave her such a hard time. He used to call chambers and ask for her highness. He was loving, but also keeping her humble in a sort of jovial, fun way. And Scalia and her had a similar banter. So the year I clerked for her, I remember at the end of the summer, he came back from a fishing trip and he walked into chambers and he had this ginormous fish wrapped in newspaper and the stench came.

You could smell it. And I happened to be standing right near the door of Chambers and he walked in and he held it up to me and he said, watch this. And he had this glimmer in his eye and he walked right into her office without knocking. And next thing you know, you heard a scream. And he knew that he had planned this whole thing just to give her a hard time. And so I think that was also part of it, is that they just really enjoyed one another. And they were able, through the common ground, to respect one another, even when they disagreed vehemently. So Ann Markowitz would like to know how the justice's mother's death, I think she died just

a few days before her high school graduation, or actually maybe the day before her high school graduation. How did that affect the justice's life and how did it shape her aspirations for marriage and career and motherhood? What I know is that the justice's mother was not able to go to college because there was not enough money in the family. And so her mother had raised her to value education very, very much and brought her to the library, had encouraged her in all of her educational ambitions. And so the justice really took that to heart. And it was really important to her to go to college and to fulfill her mother's dreams. And she talks in her Rose Garden acceptance ceremony about how she has hoped that she's lived a life that fulfills her mother's dreams in her. And I think it's very easy to say that she most certainly did that and then some. But I think that that was a big part of what drove her to pursue education and to make a contribution and to more generally use her talents for the betterment of others and not limit herself, if that makes sense.

Society had limited her mother's options, but her mother had encouraged her and told her, you know, you have these extraordinary talents, go out and use them and make the most of them. And I think when you look at the long arc of Justice Ginsburg's life, what you see is a sort of relentless, tireless determination, a resilience all the way till the end to use those talents for good and then make the most of them. And I think it in large measure probably comes from that. So Daphne Calfin would like you to maybe speculate a little bit about the justices' very controversial decision to not resign her seat in President Obama's first turn, which would allow him

to nominate her successor. Do you have any ideas why she felt so strongly about holding onto her seat for as long as she did? What I can say is what I know from what she said publicly, which is she felt like she was still in her stride. She felt like she was still doing her best work. And I know that she was enjoying it. She loved being a public servant. She loved being a justice in the way that I was saying earlier. She just loved being a judge. It wasn't about being on the high court. It was about the work for her. And she took great satisfaction in the work. And she also said at one point, she didn't think that someone with her record, someone who'd been a litigator at the ACLU could be put on the Supreme Court. So I think those were factors, major factors for her. I mean, beyond that, I could only speculate. But I think the biggest thing is she loved the work. She loved serving. And she felt at that time like she was still at the top of her game. And unfortunately, things played out as they did. It's just, you know, it's tremendously unfortunate. It's tragic, really.

Toward the end of her life, she became more outspoken than perhaps she had been in the earlier part of her career. And both Alex Thompson and Anuradha Sharma-Magee would like to know what you make of her opinions about President Trump, the fact that she made those opinions so public. And do you think that she ever really regretted it or that she felt constrained in her position from actually speaking her true feelings all of the time? I mean, again, here I'm going to I'm going to mainly be speculating, but I think it's probably is hard to be a judge and to be able to see things play out in the political world and not be able to speak to them. So I think that probably explains some of the comments. There were other comments she made publicly that I think she came to regret and walked back. I'm thinking of one comment in particular involving Colin Kaepernick. Again, it's probably really hard to be a judge and to have these opinions and have to be quiet about them.

And maybe after 40 years or, you know, I can't remember the specific date when she made the Trump comments. It was getting harder for her. But but she she did. Even with those two, she said, you know, I regret making them. I should I shouldn't speak to things like this. Melissa is a law professor like I am. And we teach a lot of constitutional law and history of the Supreme Court. And justices have been political animals for a long time. It's

just usually not on the front page of a newspaper. Carol Scott has made a point about Soyya Menchikoff, who, as you know, was one of the first women law professors and indeed was a law professor at the University of Chicago. She later became the dean at the University of Miami, which is perhaps a nice note to end on. We have your fantastic book with the Justice, which is amazing. And again, I cannot give high enough praise to this book. It's riveting. It's really fantastic. I love that it is a companion to this book by Herma Hill Kay. So maybe could you say a little bit about the Herma Hill Kay book and some of the women who are chronicled here, all of whom preceded both Herma Hill Kay and book and some of the women who are chronicled here, all of whom preceded

both Herma Hill Kaye and Justice Ginsburg into the Academy. Yeah. And so is one of them. And both Herma and Justice Ginsburg talked with great affection for her. I think what ties the books together and what is perhaps a good note to conclude on is how important it was to these women, Herma Hill Kay and Justice Ginsburg, who were people who paved the way themselves. If I'm going to use one of Justice Ginsburg's invented words, they were path markers in their own right. It was always important to them to pay homage to the women who came before

them. And so this book by Herma is a, is a magnificent collection of the stories, especially as supplemented by your afterward, Melissa. It's a wonderful preservation of the stories of women who led the way into the legal academy in a time when the legal profession itself was not hospitable to women and the academy was even less hospitable, arguably. So that is a big part of what Ginsburg and Kay really wanted to preserve. It's also the case that Justice Ginsburg constantly in her own work wanted to preserve and honor the women who came before. So for example, on the very first brief that Justice Ginsburg filed in the Supreme Court, she put the names of Dorothy Kenyon and Pauli Murray on the brief, even though they didn't actively work on the case, but because

they had been women lawyers out there ahead of her, laying the groundwork for the advocacy that the justice could do so successfully in the 70s. So together, these books really, they preserve this important history. They preserve the stories of women this important history. They preserve the stories of women who came before, they preserve the stories of Herma Hill Kay, and they preserve the legacy of Justice Ginsburg. And I think Justice Ginsburg's hope, and certainly my hope with both books, is that they will, through their stories and through preserving these legacies in this history, they will inspire people for generations to come. That's all we have time for. Again, the book is Justice, Justice Thou Shalt Pursue, written by the late Justice Ruth Bader Ginsburg and Berkeley Law Professor Amanda Tyler. The book

is published by the University of California Press and is available at all major booksellers. Thanks so much to all of you for listening and very special thanks to Writer's Block and the Beverly Hills Bar Association. And as always, we are grateful to Melody Rowell, our producer, and Eddie Cooper, who does our music, and Liam Bendixson, our summer intern. Thanks so much for listening.