Today, Explained - Supreme
Episode Date: September 21, 2020The fight over Justice Ruth Bader Ginsburg’s Supreme Court seat has already begun, but let’s not forget to celebrate her legendary life. Transcript at vox.com/todayexplained Learn more about your ...ad choices. Visit podcastchoices.com/adchoices
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Soon after I heard the news on Friday, I biked over to the Supreme Court.
I didn't take my recording gear with me, but I could tell you exactly what it sounded like out there.
There was a brisk September breeze, an occasional car driving by, and crickets.
When I got to the court around 8, there were a few dozen people there.
Some people my age, some people my parents' age, some kids, some people with dogs. Everyone was
silent and the crowd kept growing. People were showing up by foot on bikes and Ubers and Lyfts. They had candles, flowers, signs. A lot of them came
empty-handed. By nine o'clock, there were hundreds of people out there, still silent, still just the
wind, the cars, the crickets. We were there to stare at the building where Ruth Bader Ginsburg once worked.
Everyone knew there'd be a fight to replace her ahead in the weeks
before a presidential election that's already a hot mess.
But on Friday, we needed a moment to think about RBG's life and legacy.
And that's what we're going to do on the show today.
We're going to talk about why the second woman to serve on the Supreme Court of the United States means so much to so many. Because there is so much to celebrate. Like,
did you even know her nickname? It's a goodie. So her nickname improbably is Kiki because she
was a very Kiki baby. Kiki. But also like was a cheerleader. Who would have expected?
Dahlia Lithwick writes about the Supreme Court for Slate.
She covered RBG for 20 years.
She was born to new immigrant parents, Jewish, Brooklyn.
She loved books.
She loved music. Her mother was a pretty rabid, on the one hand, feminist in that sort of proto sense in that she admired really strong, independent women.
She was just the quintessential good girl who was given the sort of dueling advice by her mother from infancy. On the one hand,
her mother would tell her, be independent and also be a lady.
Be independent meant stand on your own feet. I don't think it meant don't get married. It certainly meant, you know, marry a dentist and, you know, have a good home. But it also really meant have the wherewithal to take care of yourself.
And then at the same time, be a lady, little Ruth coded as be dignified, be decorous, swallow your feelings, never show anger, be in control at all times.
And those were the stars by which she has steered her ship all her life.
And it's ironic to me that she's viewed now as this badass
because I think she approached Be a Lady
as seriously throughout her career as Be Independent.
So when exactly does she discover the law?
I think what happened was, for one thing,
she was very much a product of ingrained Jewish social justice.
So there was a lot of volunteerism.
There was a lot of awareness of, for instance,
refugees from the Holocaust being settled around her. At a
very young age, she was writing in her yearbook about the UN Charter and the Magna Carta and the
bodies of law that protect human rights. She came up, even as a child, acutely aware of the ways in which the law exists to
protect the weak. By junior high school, she was writing and thinking about that. She went to
Cornell for college, and I think she fell in love with the idea of law. And then I think she applied to Harvard Law School in part because I think she
genuinely believed that the rule of law and law itself was the thing that was going to save
America from McCarthyism, from the Red Scare, from attacks on journalists and minorities. I mean, she really felt in her bones
that the guardrail against tyranny and autocracy
was going to come from the courts and the law.
And she, I think, also believes
that there's a uniquely American way
in which that's accessible to everybody.
I think she tells the story that her family was kind of like,
eh, okay, if you have to go to law school, like, go to law school,
but just have a husband.
And at that point, she was already married to Marty Ginsburg.
So I think that there was a feeling like she couldn't go too far off the rails
because she'd secured the husband piece of it and
try it out. How bad could it be? So I don't think that it was when she approached law school that
she thought she was going to change the world. But I think she already had a deeply ingrained
belief that law could change the world. I mean, we talk about this path of going to Cornell and
then law school at Harvard and meeting a boy along the way, which sounds very normal now. But she is one of nine women in a class of 500.
And folks should see the biopic on the basis of sex, if only to just get a sense of how
completely insane that was. I mean, what it felt like. And there's this famous scene in the movie,
the then dean of the law school literally calls on the women in the class and says,
Ladies, let's go around the table and report who you are and why you're occupying a place that could have gone to a man.
A couple of the women in her class try to make a valiant effort to say, you know, I kind of want to be a lawyer.
And she gives this sort of timorous response. I'm Ruth Bader Ginsburg. My husband is in the second year class. And why are
you here, Ms. Ginsburg? To learn more about his work so I can be a more patient and understanding
wife. Was that her honest answer, you think? No, it wasn't. She wanted to kick ass. But she,
you know, again, it goes back to this be a
lady thing. Her mother had so conditioned her not to be a barnstormer that she gave the socially
appropriate answer. She was not a radical. She was really, really scrupulous. And the other thing,
just to add to the soup of how crazy, in addition to having her daughter Jane, in addition to being one of nine women in the starting class at a school that did not make her feel welcome, her husband Marty was immediately diagnosed with cancer. night, keeping up with his coursework and her own coursework when she was a law student and,
you know, basically just caring for and nursing him. So she was doing two people's work,
raising a baby and being a 1L. And I barely got through my first year. And the only thing I had
to take care of was a plant and it died. So she was extraordinary.
So what does she start doing when she gets out of law school?
How does she start kicking ass in the legal field?
Well, she kind of can't.
For a long time, she can't even get a clerkship,
despite where she graduates in her class.
You know, there are famous liberal lions,
even at the Supreme Court, who are like liberal
lions in every sense, except they won't have a female clerk. And it's one of the reasons she
drifts into academia. She ends up teaching largely because she can't get a, quote, serious law job.
And then she ends up kind of falling into teaching gender discrimination, not because, again, she's a fire breather, but because she kind of knows some stuff about it.
And the students ask her to put together a course, eventually becomes the director of the Women's Rights Project at the ACLU in the 1970s. And essentially, she thinks of herself as kind of an ambassador
between the idea of women's equal rights, equal pay, and the men who occupy the federal bench
that she's going to have to argue to. And she comes up with this sort of genius strategy where
she says, I can't stand in front of these men and tell them it's unfair to
women to pay them less or it's unfair to women to have presumptions about their role as caregivers
and mothers and nurturers. So I'm going to find men who suffer as a result of all the statutes that put women into that role.
And I'm going to bring cases to the courts on behalf of these men.
And it starts with this case that's depicted in On the Basis of Sex called Moritz v. Commissioner.
She finds a client who has been a full-time caregiver for his sick mom. And the guy tries to get a tax
deduction in 1968 for caring for his mom. The government says you can't have that deduction
because you're a single guy. You never married. The deduction is only limited to women, widowers,
or divorcees, or a husband whose wife can't be a caregiver. So basically, this is a guy
who gives up work to care for his mom. He gets whacked by the tax courts. Ironically, the person
who finds this case is Marty Ginsburg, her husband, the tax attorney. She goes, she argues at the
10th Circuit that this is crazy that all the presumptions baked into the tax code about women as dependent and women as caregivers and men as being breadwinners are literally killing Charles Moritz, who just wants his deduction.
And the argument prevails, and this becomes the spine of a years-long sort of meticulous assault on statutes that treat women differently from men.
But the thing that gets lost in the shuffle is
she had to find the man who suffers
for the judges at the Tenth Circuit to be like,
huh, well, that doesn't seem fair at all.
And I think that she really viewed her role at that time as being a kind of a
very incremental translator of values to men. She described some of her first arguments,
even at the U.S. Supreme Court, where she won almost all her cases, as,
I just had to explain. I had to explain and explain to these men and make them understand.
It's the polar opposite of bomb throwing. It's closer to kindergarten teacher in some ways
than it is to feminist icon. But she built up over years and years these attacks on all of
these different statutes that made assumptions about women being
at home and men working. And then, ironically, when she is up for confirmation at the U.S.
Supreme Court, the feminist movement turns on her and says, where's the fire? She almost didn't get
confirmed to the U.S. Supreme Court, not because of opposition from the right, but opposition from the left, who felt that she was too conservative, small C, too boring, that she set her sights too low.
And again, ironic in light of the way we see her today, you know, when we all wear the dissent collar earrings and the RBG tote bags.
I mean, she was cut from absolutely the cloth
of get along and don't rock the boat.
After the break, regular Ruth Bader Ginsburg
becomes the notorious RBG.
I'm Sean Ramos-Firm.
It's Today Explained.
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Cards issued by Sutton Bank, member FDIC, terms and conditions apply. Dahlia, how does Ruth Bader Ginsburg go from being someone feminists aren't even comfortable supporting to being, you know, the paragon of feminism?
This happens while she's on the Supreme Court?
It's interesting. I think for the first chunk of her time on the court, she remains, I think Cass Sunstein has called it,
a rational minimalist. I think she really is incremental, institutional. She was not writing
fiery dissents. She was not reading dissents from the bench. She was really a sort of white-gloved lady for most of her initial tenure there. It's important,
I think, to understand that she had a partner in crime. She had for the first part of her career
Sandra Day O'Connor. And she actually has often said it wasn't until O'Connor left in 2006
that she realized, in some sense, what it was to be the only woman at the court because she'd never been the only woman at the court. And I think partly as a result of O'Connor leaving, partly after O'Connor left, was replaced by Sam Alito, the court started to drift quite dramatically to the right. And then she started
to find her voice. And there's a lot of theories about why. I often carbon date it to a strip
search case where she was at that point the only woman on the bench. And the issue was whether a
high schooler in Arizona who'd been strip searched for drugs had had an illegal search. And some of her colleagues on the bench were like, ha ha, this is Rip Snorton funny. You know, Justice Breyer made some joke. Justice Roberts was kind of cracking wise and Scalia was cracking wise. And there was just this sort of Porky feeling about the whole argument. And a lot of us who were covering that day watched Ginsburg kind of get whiter and whiter. She's pretty white to begin with. But she just checked the humor. And then she did something she never does, which is she gave an interview to Joan Biskupic while the case was pending, just saying, like, this is not funny. And I think if there were more
women on the court, that wouldn't have gone down that way. And a lot of, particularly the women
journalists watching, were really struck by how arresting the change in her was. And around that
time, she really did start to find her voice, start to say out loud the things that maybe the voice of her mom in her
head had told her to tamp down over the years. And that's when she started writing dissents.
You know, she started writing in the, there was a Walmart class action case about, you know,
how women workers at Walmart were treated. The Lilly Ledbetter fair pay case about, you know,
a woman facing just astonishing
pay discrimination, Hobby Lobby. There was just a whole run of cases in which she started writing
dissents, the subtext of which was, you just don't get it. You don't understand what it's like to be
a woman in the world and have people grab you. You don't understand what it's like to be a woman
in the world and not be able to ask, am I getting paid less than men? You don't understand what
it's like to be a woman seeking to have contraception and being told that your employer's
religious beliefs preclude that. She stepped into this role quite late in her career, but she stepped in with total gusto. And the sort of cult of RBG that followed was, you know, in some ways culling from some of those dissents, culling from the language she used on the bench, the ways in which she felt as though all these years of being mild and not rocking the boat, and here I am, and I'm still having to say this stuff.
That becomes the blueprint for, you know,
the notorious RBG meme and for, you know,
the tote bags and the books
and the Halloween costumes that follow.
But it is interesting.
It's almost as though after decades and decades and decades
of seeing herself in the role of sort of ambassador and translator between men and women in the law, she suddenly just kind doing this stuff i was doing in the 1970s and
that's how i think the sort of myth the legend the icon is born yeah i mean yeah her career her
story it is the stuff of american mythology the adversity is there all the way through the
overcoming of that adversity is there all the way through. It's storybook stuff, except maybe for the ending.
Will whatever comes of this fight to replace RBG also be part of her legacy if it doesn't go her way?
I mean, I think nobody says that Thurgood Marshall's legacy was that he was replaced by Clarence Thomas.
Thurgood Marshall is respected on the merits of the
change he effectuated that nobody else could have done and that he did in ways that are enduring.
But I think that it's probably really the best sort of honor to her to kind of judge her on her
own merits. And that is for an absolutely extraordinary, path-breaking career, and not a
single decision that she could have made differently in a different time, not knowing all the facts
that we know. I just think that would be a really regrettable decision, disserving what she has
really given. What went through your head on Friday night when you got the news that she had passed, Dahlia?
You know, it's funny because we were all aware that this was the fifth bout of cancer. She'd
had such a tough spring. She'd been in and out of hospitals, having procedures, had this stent. And
so you'd think everyone would be ready. But it was just
a punch in the neck. I mean, it was just a flat out breathtaking. I actually had turned everything
off. It was Jewish New Year. I'd cooked like a 17 course dinner. So the phone was blowing up and I
was ignoring it. And in fact, my son ran into my study and turned it off because it was
driving us crazy. So, I actually didn't hear when everyone else heard. I heard a little bit after
when I finally checked my phone. But I was, you know, it's ridiculous that we all thought she's
going to live till like 2057 in light of what we all knew yeah but i really think that because she's such an emblem
of toughness and survival i guess i just didn't really feel like this would ever end yeah yeah
and i mean by the time you checked your phone, I imagine you were already getting the news alongside the fact that she had passed that Mitch McConnell was going to waste no of Justice Scalia, whatever you think of Justice Ginsburg, it's so sad that we're immediately lacing on the gloves, getting ready to pummel each other, because I think both of them deserve
more than that. There's this weird macabre fighting now about how soon she can be buried,
because then it's appropriate. Once she's buried, we can name her replacement. And I find every
piece of that gross. I guess I could wish we could just have a minute to feel the whole Ginsburg-shaped hole in the world and experience that and think about what it means. But I guess those days are not with us anymore.
Well, that's why I'm talking to you right now, Dahlia. So here's our moment, right? What do we tell people to focus on? The fight is coming. The fight will last for weeks, if not months. What should we think about in this moment when it's still fresh, when this loss is still fresh? article I wrote for a sort of collected series about Justice Ginsburg that she loved is this
tension between the rock chick, RBG, notorious, badass persona that everyone fell in love with,
including me, by the way, but how distant that was from the reality of how she lived
her life, how she built her career, how she actually effectuated constitutional change. I
mean, she was really the polar opposite of a burn it all down, you know, take no prisoners,
to the ramparts, you know, screw the enemy. She just wasn't that way. And I think
the one filament of that that everybody does know is, you know, that her dearest friend on the court
was Antonin Scalia, despite the fact that they disagreed on everything. But it wasn't just Scalia.
I mean, she talked so fondly of Justice Kennedy, of John Roberts. She was really quick to talk
fondly of Brett Kavanaugh. And I think that's valuable.
It seems as though I know in a time where I'm the first person to stick my fist in the air and say,
let's fight. I have no patience for explaining. Just to realize her entire career as a litigator
and even at the end of her career as a badass jurist was about explaining. It was just about trying to
both ask for people to be empathetic and compassionate about what they didn't know,
but also trying to patiently understand what she didn't know and what she should know. And I guess
I just feel like I don't want to get so lost in the hagiography
of her as this, I think she used to call herself a fierce feminist, you know, the kind of
woman that we put on the handbags and on the tote bags and on the mugs. I don't want lost in that to be how much patience she had for process and for reason and for discourse and
for civility. And maybe it's old fashioned, but I really want to give it its due right now because
we're about to enter to the ramparts moment at which the other side must die. And that was just not how she rolled.
Could you encapsulate what it means to lead a meaningful life for you?
To put it simply, it means
doing something outside yourself.
I tell the law students, I address now and then,
if you're going to be a lawyer and just practice your profession,
well, you have a skill, so you're very much like a plumber
but
if you want to be a true professional
you will do
something outside yourself
something to repair
tears in your community
something to make
life a little better
for people
less fortunate than you.
That's what I think a meaningful life is.
One lives not just for oneself, but for one's community.
Dahlia Lithwick is the host of the Amicus podcast at Slate.
Right now, at the top of that show's feed,
you'll find an interview Dahlia did with Justice Ginsburg in January of this year.
Dahlia told me it was a great interview, but Justice Ginsburg hardly once made eye contact with her.
Dahlia could have been a plant or wallpaper in the room.
The Justice was instead, throughout the interview,
laser-focused on Dahlia's producer, a young woman named Molly Olmsted.
And Dahlia said that was consistent with the other times she'd been around Justice Ginsburg.
The Justice would always find the young women in her audience,
the young women in the crowd,
and look at them, connect with them,
because in them, she saw her legacy.
Justice Ginsburg was always trying to build the future
she wanted to see in the world.
She built the scaffolding,
but she knew the young women out there would continue the work. Thank you.