1 00:00:15,356 --> 00:00:21,956 Speaker 1: Pushkin from Pushkin Industries. This is Deep Background, the show 2 00:00:21,956 --> 00:00:25,596 Speaker 1: where we explored the stories behind the stories in the news. 3 00:00:26,116 --> 00:00:31,316 Speaker 1: I'm Noah Feldman. Last Friday, Justice Ruth Bader Ginsberg died 4 00:00:31,596 --> 00:00:36,076 Speaker 1: in office at the age of eighty seven. Justice Ginsburg 5 00:00:36,196 --> 00:00:40,276 Speaker 1: was a central figure in the struggle for women's equality. 6 00:00:40,876 --> 00:00:44,596 Speaker 1: She argued cases before the US Supreme Court that established 7 00:00:44,636 --> 00:00:49,636 Speaker 1: important principles of equality for men and women. She then 8 00:00:49,716 --> 00:00:53,156 Speaker 1: became a federal judge and a Supreme Court justice, and 9 00:00:53,276 --> 00:00:55,636 Speaker 1: then towards the end of her time on the bench, 10 00:00:56,036 --> 00:00:59,836 Speaker 1: she became something more than that. She became a national celebrity, 11 00:01:00,276 --> 00:01:06,156 Speaker 1: the stop called Notorious RBG here to discuss Ginsberg's life 12 00:01:06,236 --> 00:01:10,036 Speaker 1: and her legacy, particularly her legacy as a jury. We're 13 00:01:10,116 --> 00:01:14,196 Speaker 1: joined by Richard Primus. Richard is a professor of constitutional 14 00:01:14,276 --> 00:01:17,356 Speaker 1: law at the University of Michigan. He clerked for Justice 15 00:01:17,396 --> 00:01:21,516 Speaker 1: Ginsburg in the nineteen ninety nine Supreme Court term. Richard 16 00:01:21,596 --> 00:01:24,596 Speaker 1: is also the person with whom my education and constitutional 17 00:01:24,676 --> 00:01:28,396 Speaker 1: law has been most closely entangled. He and I first 18 00:01:28,436 --> 00:01:30,956 Speaker 1: met on our very first day of freshman year. We 19 00:01:31,036 --> 00:01:34,636 Speaker 1: studied constitutional law together in college. We talked about it 20 00:01:34,716 --> 00:01:38,036 Speaker 1: constantly when we were together in Oxford. We talked about 21 00:01:38,076 --> 00:01:40,916 Speaker 1: it further when we went to law school together, and 22 00:01:41,036 --> 00:01:43,956 Speaker 1: now we're in the same profession and we continue to 23 00:01:43,996 --> 00:01:47,716 Speaker 1: speak about the Constitution of its development. There's nobody who's 24 00:01:47,716 --> 00:01:50,516 Speaker 1: influenced me more, there's no one who might trust more, 25 00:01:50,796 --> 00:01:52,676 Speaker 1: and there's no one with whom I thought it would 26 00:01:52,676 --> 00:02:02,196 Speaker 1: be more appropriate to discuss Justice Ginsburg and the Constitution. Richard, 27 00:02:02,236 --> 00:02:05,636 Speaker 1: thank you so much for joining me. Let's start with 28 00:02:06,036 --> 00:02:09,476 Speaker 1: how you met Justice Ginsburg for the first time, which 29 00:02:09,516 --> 00:02:11,636 Speaker 1: I think must have been when you went to interview 30 00:02:11,836 --> 00:02:14,916 Speaker 1: to be her lot clerk. It was. It was in 31 00:02:14,996 --> 00:02:19,356 Speaker 1: the fall of nineteen ninety seven. I was a thirty 32 00:02:19,396 --> 00:02:23,596 Speaker 1: year law student and I had been told that she 33 00:02:23,716 --> 00:02:27,196 Speaker 1: was taking applications for two years out the year that 34 00:02:27,196 --> 00:02:30,036 Speaker 1: I would have been eligible to clerk. And I sent 35 00:02:30,116 --> 00:02:34,516 Speaker 1: in materials and I was in my apartment in New 36 00:02:34,556 --> 00:02:38,956 Speaker 1: Haven and the phone rang and a woman identified herself 37 00:02:38,996 --> 00:02:41,796 Speaker 1: as calling from Justice Ginsburg's chambers and said she wanted 38 00:02:41,836 --> 00:02:44,316 Speaker 1: to speak to me. That I say that the Justice 39 00:02:44,876 --> 00:02:48,116 Speaker 1: wanted to speak to me. Could I be available a 40 00:02:48,156 --> 00:02:51,156 Speaker 1: couple of days later? And I thought, yes, yes I could, 41 00:02:51,396 --> 00:02:53,556 Speaker 1: And I hopped on a train and I went down 42 00:02:53,556 --> 00:02:58,356 Speaker 1: to DC, and I remember going in and the marshals 43 00:02:58,396 --> 00:03:02,676 Speaker 1: taking me to her chambers and meeting her clerks who 44 00:03:02,756 --> 00:03:06,636 Speaker 1: interviewed me, and then I was told the Justice would 45 00:03:06,636 --> 00:03:10,476 Speaker 1: see me, and I walked into her own private and 46 00:03:10,916 --> 00:03:13,676 Speaker 1: I was looking at one of the biggest office rooms 47 00:03:13,716 --> 00:03:16,156 Speaker 1: I had ever seen, and one of the smallest people 48 00:03:16,436 --> 00:03:21,356 Speaker 1: I had ever seen inhabiting such an office. And she 49 00:03:21,516 --> 00:03:24,636 Speaker 1: had a very very big smile from behind some very 50 00:03:24,756 --> 00:03:29,076 Speaker 1: very big glasses, and it felt warm, it felt welcoming, 51 00:03:29,156 --> 00:03:30,796 Speaker 1: and I'd never met her before, and she was the 52 00:03:30,836 --> 00:03:33,236 Speaker 1: most powerful person I'd ever met, but she made me 53 00:03:33,316 --> 00:03:34,636 Speaker 1: feel that she was glad to see me. And we 54 00:03:34,676 --> 00:03:38,716 Speaker 1: sat down and we talked for maybe twenty minutes. She 55 00:03:38,836 --> 00:03:43,316 Speaker 1: was well prepared, she had read materials that I had submitted, 56 00:03:43,996 --> 00:03:47,476 Speaker 1: and at the end of the time she said, you know, 57 00:03:47,556 --> 00:03:49,916 Speaker 1: with no fanfare, you know, as if she was saying, 58 00:03:50,036 --> 00:03:52,076 Speaker 1: you know, don't forget your umbrella. On the way out, 59 00:03:52,556 --> 00:03:57,316 Speaker 1: she said, well, i'd certainly like here. I noticed that 60 00:03:57,396 --> 00:04:00,356 Speaker 1: my voice slows down as I recall what she said, 61 00:04:00,396 --> 00:04:04,756 Speaker 1: because she was very famously very slow. I'm a slow speaker, 62 00:04:04,876 --> 00:04:08,156 Speaker 1: and she was a full tick slower than I am. 63 00:04:08,236 --> 00:04:17,236 Speaker 1: She said, well, if if it will work for you, 64 00:04:17,436 --> 00:04:22,036 Speaker 1: I'd be very happy to have you here clerk for me. 65 00:04:23,396 --> 00:04:25,956 Speaker 1: And I thought, yes, yes, that would work for me 66 00:04:25,996 --> 00:04:28,716 Speaker 1: a great deal. And she shook my hand and gave 67 00:04:28,756 --> 00:04:31,116 Speaker 1: me a little hugg and sent me on my way. 68 00:04:31,236 --> 00:04:33,356 Speaker 1: And about a year and a half later I moved 69 00:04:33,436 --> 00:04:35,916 Speaker 1: down to DC to start the job. Can I ask 70 00:04:35,916 --> 00:04:38,196 Speaker 1: you about the rhythm of that conversation. I mean you 71 00:04:38,276 --> 00:04:42,916 Speaker 1: mentioned that Justice Kinsburg spoke slowly. That's a substantial understatement. 72 00:04:43,636 --> 00:04:45,636 Speaker 1: I mean, I'm a fast talker and how a slow talker, 73 00:04:45,676 --> 00:04:48,796 Speaker 1: so maybe for me the difference felt even greater. But 74 00:04:48,916 --> 00:04:51,196 Speaker 1: I my experience of her was that I had never 75 00:04:51,236 --> 00:04:56,076 Speaker 1: met anybody who spoke with such long pauses between things 76 00:04:56,076 --> 00:04:58,076 Speaker 1: that she said. So how did the rhythm of the 77 00:04:58,116 --> 00:05:02,716 Speaker 1: conversation go? Because you're also a very rhythmic conversationalist, So 78 00:05:03,196 --> 00:05:07,236 Speaker 1: the rhythm of the conversation was slow, as were all 79 00:05:07,316 --> 00:05:12,316 Speaker 1: subsequent conversations I ever had with her. One of the 80 00:05:12,356 --> 00:05:15,116 Speaker 1: clerks who talks to me before I went and gave 81 00:05:15,156 --> 00:05:18,196 Speaker 1: me a piece of advice that I found very useful, 82 00:05:18,236 --> 00:05:20,236 Speaker 1: in which I then passed on to other people who 83 00:05:20,276 --> 00:05:23,196 Speaker 1: met the Justice later. He said, I tried to work 84 00:05:23,276 --> 00:05:26,956 Speaker 1: myself into a sort of zen state before I talk 85 00:05:27,316 --> 00:05:33,276 Speaker 1: with the justice, slow way down and take what comes 86 00:05:33,316 --> 00:05:36,796 Speaker 1: as it comes and wait in that conversation. I practiced that, 87 00:05:36,836 --> 00:05:40,916 Speaker 1: and then in sensimen conversations, you know, slow your breath down. Wait. 88 00:05:41,516 --> 00:05:46,916 Speaker 1: If she pauses, it doesn't necessarily mean she's done. It 89 00:05:47,076 --> 00:05:50,796 Speaker 1: usually just means she's thinking. Give yourself, you know, sort 90 00:05:50,796 --> 00:05:54,036 Speaker 1: of like a full for Mississippi count after she's done, 91 00:05:54,196 --> 00:05:58,756 Speaker 1: to conclude that she's finished, and then answer what was 92 00:05:58,796 --> 00:06:04,156 Speaker 1: that about? Why was Justice Ginsburg's speech style so remarkable 93 00:06:04,876 --> 00:06:06,836 Speaker 1: so unusual? I mean, you said she was thinking, and 94 00:06:06,876 --> 00:06:09,396 Speaker 1: there's no question that she was thinking, But she was 95 00:06:09,396 --> 00:06:15,956 Speaker 1: an extraordinarily brilliant woman and intellectually speaking extremely quick, so 96 00:06:16,276 --> 00:06:18,676 Speaker 1: I can't that can't be a complete explaination. There was 97 00:06:18,756 --> 00:06:22,196 Speaker 1: some other thing going on there. What do you think 98 00:06:22,236 --> 00:06:26,236 Speaker 1: it was. It's true she had a very quick mind, 99 00:06:26,956 --> 00:06:29,036 Speaker 1: very quick you know, she would see four different things 100 00:06:29,076 --> 00:06:32,996 Speaker 1: happening all at the same time. But it's a mistake 101 00:06:33,076 --> 00:06:36,956 Speaker 1: to think that people who do that also don't get 102 00:06:36,996 --> 00:06:40,116 Speaker 1: something out of pausing and thinking. Yet more, I think 103 00:06:40,156 --> 00:06:43,116 Speaker 1: that's undervalued. I do think that was happening, but I 104 00:06:43,116 --> 00:06:46,796 Speaker 1: think you're right, it's more than that, And I associate 105 00:06:46,876 --> 00:06:49,716 Speaker 1: it with two things. And it's very hard for me 106 00:06:49,756 --> 00:06:52,396 Speaker 1: to know how much there's real causality here and how 107 00:06:52,476 --> 00:06:54,756 Speaker 1: much this is a just so story that I would 108 00:06:54,796 --> 00:06:57,436 Speaker 1: be telling as a matter of associations. But I'll give 109 00:06:57,596 --> 00:07:03,796 Speaker 1: these two associations. The first is Justice Ginsberg was extremely 110 00:07:03,836 --> 00:07:07,716 Speaker 1: careful in all of her work. She could see the 111 00:07:07,756 --> 00:07:11,236 Speaker 1: answer to a legal problem very fast. But it's one 112 00:07:11,276 --> 00:07:13,676 Speaker 1: thing to see the answer to the legal problem very fast, 113 00:07:13,756 --> 00:07:16,236 Speaker 1: and another to say Okay, done with that, you know, 114 00:07:16,276 --> 00:07:19,636 Speaker 1: like not thinking about it more right, moving on, and 115 00:07:19,716 --> 00:07:22,636 Speaker 1: another thing to say, Okay, I've seen it. Now I'm 116 00:07:22,636 --> 00:07:25,076 Speaker 1: going to make super sure. I'm going to stress test 117 00:07:25,116 --> 00:07:28,036 Speaker 1: it four or five different ways. I'm going to set 118 00:07:28,076 --> 00:07:30,236 Speaker 1: it aside and come back to it to make sure. 119 00:07:30,676 --> 00:07:35,156 Speaker 1: Justice Ginsberg was very much in the latter category. As 120 00:07:35,196 --> 00:07:41,116 Speaker 1: a matter of working practices. She worked very hard, long 121 00:07:41,276 --> 00:07:44,636 Speaker 1: hours every day for her whole professional life, as far 122 00:07:44,676 --> 00:07:47,516 Speaker 1: as I know, And part of that was just a 123 00:07:47,516 --> 00:07:49,156 Speaker 1: matter of industry and get anything that's done, But part 124 00:07:49,156 --> 00:07:54,236 Speaker 1: of it was being extremely thorough and careful. And I've 125 00:07:54,236 --> 00:07:59,596 Speaker 1: always associated that with a fact about gender and the 126 00:07:59,676 --> 00:08:05,156 Speaker 1: Justice's professional life, which is that she came of age 127 00:08:05,276 --> 00:08:09,636 Speaker 1: as a prominent woman at a time when women knew 128 00:08:10,316 --> 00:08:13,356 Speaker 1: that if they were going to be thought to be 129 00:08:13,436 --> 00:08:15,876 Speaker 1: as good at what they were doing as the men 130 00:08:15,916 --> 00:08:21,076 Speaker 1: around them, they had to perform flawlessly, where you know 131 00:08:21,156 --> 00:08:24,996 Speaker 1: the man next to her only had to perform. Well, 132 00:08:25,516 --> 00:08:29,916 Speaker 1: you've got to do it cleaner and better, and no mistakes, 133 00:08:29,996 --> 00:08:32,796 Speaker 1: because if you make a mistake, you know the men 134 00:08:32,876 --> 00:08:36,596 Speaker 1: around you will as a matter of confirmation bias. See, Oh, 135 00:08:36,596 --> 00:08:39,156 Speaker 1: well she makes mistakes, right, She's not really up to it. 136 00:08:39,676 --> 00:08:42,516 Speaker 1: So she did not want to make mistakes. And I 137 00:08:42,556 --> 00:08:46,876 Speaker 1: think that whether that caused her to slow down, or 138 00:08:46,876 --> 00:08:50,476 Speaker 1: whether she naturally was a person who worked very, very 139 00:08:50,556 --> 00:08:53,916 Speaker 1: carefully and therefore she was able to do what was necessary, 140 00:08:53,996 --> 00:08:56,396 Speaker 1: I don't know, right, but I think one of those. 141 00:08:56,916 --> 00:09:00,276 Speaker 1: The other is a personality matter that I think is 142 00:09:00,316 --> 00:09:03,276 Speaker 1: something that most people missed about the justice that took 143 00:09:03,276 --> 00:09:05,196 Speaker 1: me several months of working with her to figure it out. 144 00:09:06,036 --> 00:09:09,716 Speaker 1: I think she was a very shy person. I realized 145 00:09:10,156 --> 00:09:13,636 Speaker 1: only several months into my clerkship that so many of 146 00:09:13,676 --> 00:09:17,196 Speaker 1: her behaviors lined up with that, and I think it 147 00:09:17,236 --> 00:09:19,316 Speaker 1: took me a long time to realize because she was 148 00:09:19,356 --> 00:09:22,196 Speaker 1: the most powerful person I knew you, like she was 149 00:09:22,236 --> 00:09:24,956 Speaker 1: in charge. You know, like what did she have to 150 00:09:24,956 --> 00:09:26,756 Speaker 1: be shy about? And late in her life after the 151 00:09:26,796 --> 00:09:30,116 Speaker 1: celebrity took over, you know, like, certainly people don't think 152 00:09:30,116 --> 00:09:33,076 Speaker 1: of that, but I think she was a shy person. 153 00:09:33,196 --> 00:09:34,916 Speaker 1: And I think she was a shy person who worked 154 00:09:34,916 --> 00:09:37,996 Speaker 1: and overcame the shyness. But I think it accounted for 155 00:09:38,036 --> 00:09:41,436 Speaker 1: the slow manner. I think that's completely right. And I 156 00:09:41,476 --> 00:09:44,876 Speaker 1: actually think that a different narrative could have been constructed 157 00:09:44,876 --> 00:09:48,276 Speaker 1: for her as somebody who really overcame with great effort 158 00:09:48,876 --> 00:09:52,796 Speaker 1: a really powerful shyness that could otherwise in another person, 159 00:09:53,236 --> 00:09:57,196 Speaker 1: have been genuinely debilitating. I do think that once the 160 00:09:57,236 --> 00:10:01,396 Speaker 1: cult of the Notorious RBG was created, there was no 161 00:10:01,516 --> 00:10:04,916 Speaker 1: convenient place for that narrative to be put in, and 162 00:10:04,956 --> 00:10:07,596 Speaker 1: I think it was just read out of the documentaries 163 00:10:07,676 --> 00:10:10,196 Speaker 1: and out of the myth making that surrounded her. And 164 00:10:10,236 --> 00:10:12,236 Speaker 1: I want to ask you actually about that phase of 165 00:10:12,836 --> 00:10:17,996 Speaker 1: RBG myth making that corresponded in time, strangely enough to 166 00:10:18,156 --> 00:10:22,516 Speaker 1: the period of time when some court insiders were urging 167 00:10:22,556 --> 00:10:26,796 Speaker 1: her to consider stepping down. Tell me how you, as 168 00:10:26,796 --> 00:10:31,916 Speaker 1: her clerk thought about this cultification, and especially its relationship 169 00:10:31,956 --> 00:10:34,756 Speaker 1: to the very delicate question which was being raised in 170 00:10:34,876 --> 00:10:37,916 Speaker 1: public in print by at least some people as early 171 00:10:37,956 --> 00:10:41,036 Speaker 1: as the very beginning of President Obama's second term of 172 00:10:41,036 --> 00:10:44,276 Speaker 1: whether once it was known publicly that she had been 173 00:10:44,316 --> 00:10:47,876 Speaker 1: diagnosed with several kinds of cancer, she should consider stepping 174 00:10:47,876 --> 00:10:50,516 Speaker 1: down so that the president could appoint someone liberal to 175 00:10:50,516 --> 00:10:57,556 Speaker 1: replace her. So I sometimes feel that I knew Justice 176 00:10:57,636 --> 00:11:01,756 Speaker 1: Ginsburg before she was famous, by which I mean when 177 00:11:01,756 --> 00:11:04,436 Speaker 1: she was merely a justice of the Supreme Court, right yep, 178 00:11:04,636 --> 00:11:06,956 Speaker 1: famous to us, but not necessarily to the whole world. 179 00:11:07,236 --> 00:11:09,516 Speaker 1: That's a lot of fame for when life time to 180 00:11:09,516 --> 00:11:13,996 Speaker 1: be a Supreme Court justice, but not like it was later. 181 00:11:14,116 --> 00:11:17,196 Speaker 1: She was famous, but she wasn't a celebrity exactly right, 182 00:11:17,276 --> 00:11:20,116 Speaker 1: that's the difference. In fact, we can go even one 183 00:11:20,116 --> 00:11:23,356 Speaker 1: step further. Justice Ginsburg is on the short list of 184 00:11:23,476 --> 00:11:26,996 Speaker 1: justices through all of history who would have been major 185 00:11:27,036 --> 00:11:29,396 Speaker 1: figures in American law even if she had never sat 186 00:11:29,436 --> 00:11:33,556 Speaker 1: on the Court. She already had that plus being a justice. 187 00:11:33,556 --> 00:11:35,596 Speaker 1: And yet the notorious RBG thing took it to a 188 00:11:35,636 --> 00:11:38,316 Speaker 1: different level. In fact, just a suitor in his very 189 00:11:38,316 --> 00:11:40,996 Speaker 1: brief publicly released statement that the Supreme Court released said 190 00:11:41,516 --> 00:11:44,196 Speaker 1: she was one of the very few justices who achieved 191 00:11:44,196 --> 00:11:48,116 Speaker 1: greatness before joining the court. Yeah, I think that's true. 192 00:11:48,796 --> 00:11:52,476 Speaker 1: Pretty much, all Supreme Court justices are figures in American 193 00:11:52,596 --> 00:11:55,596 Speaker 1: legal history simply by virtue of having been Supreme Court justices, 194 00:11:56,196 --> 00:11:58,996 Speaker 1: but most of them are not major figures after the 195 00:11:59,036 --> 00:12:02,876 Speaker 1: passage of a little bit of time. There's a shortish 196 00:12:02,996 --> 00:12:06,636 Speaker 1: list of people who are major figures after the passage 197 00:12:06,636 --> 00:12:08,436 Speaker 1: of the little time, and there's a shortish list of 198 00:12:08,516 --> 00:12:10,836 Speaker 1: people who would have been major figures had they not 199 00:12:10,956 --> 00:12:16,316 Speaker 1: sat on the court. So Thurgood Marshall, Louis Brandeis Joseph's story, 200 00:12:16,716 --> 00:12:20,316 Speaker 1: Oliver Wendell Holmes. I'm not sure we could get to ten, 201 00:12:20,836 --> 00:12:23,796 Speaker 1: and I really doubt we could get to sixteen or seventeen. 202 00:12:24,396 --> 00:12:27,236 Speaker 1: She's on that list right because of the career she 203 00:12:27,356 --> 00:12:29,356 Speaker 1: had and the impact that she had before she came 204 00:12:29,356 --> 00:12:33,956 Speaker 1: to the court, and yet the turn that the notorious 205 00:12:34,036 --> 00:12:38,836 Speaker 1: RBG took took it to an entirely different level. I 206 00:12:38,876 --> 00:12:45,316 Speaker 1: had reservations about that development. I felt a little bit 207 00:12:45,356 --> 00:12:49,836 Speaker 1: bad about my reservations because I had great respect for 208 00:12:49,916 --> 00:12:54,036 Speaker 1: an affection for the justice, and there was a simple 209 00:12:54,076 --> 00:12:55,516 Speaker 1: way in which it was good for her, and she 210 00:12:55,596 --> 00:12:58,596 Speaker 1: was enjoying it, and it was useful in some ways 211 00:12:58,596 --> 00:13:02,156 Speaker 1: also for things that she represented. And it happened also 212 00:13:02,796 --> 00:13:06,556 Speaker 1: in the wake of her husband's death, and she was 213 00:13:06,596 --> 00:13:10,236 Speaker 1: incredibly close to Marty, her husband. He was a life force, 214 00:13:10,676 --> 00:13:13,596 Speaker 1: and I think that that did something for her also. 215 00:13:13,636 --> 00:13:15,756 Speaker 1: So for all those reasons, it felt to me a 216 00:13:15,756 --> 00:13:19,156 Speaker 1: little bit churlish to have reservations, But I had reservations. 217 00:13:19,316 --> 00:13:21,076 Speaker 1: I had reservations, first of all, because I don't like 218 00:13:21,196 --> 00:13:26,036 Speaker 1: cults of personality. Even when the people around whom they 219 00:13:26,076 --> 00:13:28,876 Speaker 1: center are people you know, who I like a lot 220 00:13:29,316 --> 00:13:32,396 Speaker 1: and admire and share values with, I still don't like 221 00:13:32,436 --> 00:13:36,076 Speaker 1: cults of personality. I think they can go bad places, 222 00:13:36,556 --> 00:13:41,156 Speaker 1: and I think they can affect the judgment and the 223 00:13:41,156 --> 00:13:44,796 Speaker 1: self awareness of the person at the center of the cult. 224 00:13:45,556 --> 00:13:50,316 Speaker 1: And I worried about that. I was someone who worried 225 00:13:50,876 --> 00:13:56,116 Speaker 1: for a long time that the justice would stay too long. 226 00:13:56,676 --> 00:13:59,076 Speaker 1: Not sometimes you talk about a judge staying too long, 227 00:13:59,436 --> 00:14:01,356 Speaker 1: what you mean is they can't do the work anymore. 228 00:14:01,796 --> 00:14:04,756 Speaker 1: I was worried about that. You know, I was in 229 00:14:04,796 --> 00:14:07,956 Speaker 1: touch with the justice, including about some legal things a 230 00:14:07,956 --> 00:14:09,836 Speaker 1: few times over the past year or two, and she 231 00:14:09,916 --> 00:14:12,116 Speaker 1: was just as sharp there as she had ever been. 232 00:14:12,676 --> 00:14:15,756 Speaker 1: But I worried about her staying too long as a 233 00:14:15,836 --> 00:14:20,716 Speaker 1: legacy matter, because we live in an age, really quite 234 00:14:20,796 --> 00:14:26,196 Speaker 1: unfortunately when the populating of the Supreme Court is a 235 00:14:26,516 --> 00:14:32,036 Speaker 1: highly ideological thing that fought out at the most titanic 236 00:14:32,236 --> 00:14:37,236 Speaker 1: levels of American politics, and I had a fear for 237 00:14:37,316 --> 00:14:41,116 Speaker 1: the fate of her legacy that ran along the following lines. 238 00:14:41,876 --> 00:14:43,676 Speaker 1: People always used to say that she was the Thurgood 239 00:14:43,676 --> 00:14:46,636 Speaker 1: Marshal of the women's movement, and in a way that 240 00:14:46,676 --> 00:14:49,156 Speaker 1: was really apt description, and my fear was that it 241 00:14:49,156 --> 00:14:54,116 Speaker 1: would be only too true in the end, because maybe 242 00:14:54,116 --> 00:14:57,116 Speaker 1: the single most consequential decision for the path of American 243 00:14:57,236 --> 00:15:00,316 Speaker 1: law that Thurgood Marshal ever made was not to retire 244 00:15:00,396 --> 00:15:03,036 Speaker 1: during the Carter administration when there were people who said 245 00:15:03,076 --> 00:15:05,756 Speaker 1: he should, And as a result of his not retiring 246 00:15:05,836 --> 00:15:08,836 Speaker 1: during the Carter administration, when his seat was eventually filled, 247 00:15:08,836 --> 00:15:13,036 Speaker 1: it was by Clarence Thomas. And the difference over these 248 00:15:13,116 --> 00:15:15,716 Speaker 1: last thirty years between Clarence Thomas on the Supreme Court 249 00:15:15,836 --> 00:15:18,916 Speaker 1: and someone who Jimmy Carter might have appointed has been 250 00:15:18,916 --> 00:15:23,036 Speaker 1: a really big difference in American law. And it's particularly 251 00:15:23,076 --> 00:15:25,876 Speaker 1: bitter because you know, Thurgood Marshal, you know, it was 252 00:15:25,996 --> 00:15:31,156 Speaker 1: giants of American law. If anyone gave his life successfully 253 00:15:31,796 --> 00:15:34,716 Speaker 1: to making America a better place through the law, you know, like, 254 00:15:34,716 --> 00:15:37,916 Speaker 1: how can Thurgood Marshal not beyond the shortest of lists? 255 00:15:38,956 --> 00:15:42,956 Speaker 1: And yet formal Jim Crow in the South would have 256 00:15:43,156 --> 00:15:46,516 Speaker 1: ended with or without Thurgood Marshall. It might have taken 257 00:15:46,556 --> 00:15:48,876 Speaker 1: a little bit longer. It might have happened a little 258 00:15:48,876 --> 00:15:51,556 Speaker 1: bit differently. There would have been more suffering, unjustly of 259 00:15:51,596 --> 00:15:54,156 Speaker 1: African Americans, you know, for for like some number of 260 00:15:54,236 --> 00:15:56,996 Speaker 1: incremental years in the meantime right, not to diminish any 261 00:15:57,036 --> 00:15:59,716 Speaker 1: of that, but its days were numbered. You know, there 262 00:15:59,716 --> 00:16:03,716 Speaker 1: were larger forces in play, and it would have ended 263 00:16:04,076 --> 00:16:08,556 Speaker 1: with or without him. The decision about when to retire, 264 00:16:09,476 --> 00:16:11,676 Speaker 1: like didn't have to be that way. That could have 265 00:16:11,716 --> 00:16:15,716 Speaker 1: been different. And similarly, you know, I worried that Justice 266 00:16:15,756 --> 00:16:20,876 Speaker 1: Ginsberg would retread that path. She was a very important 267 00:16:20,916 --> 00:16:23,636 Speaker 1: figure in the coming of sex equality in the law, 268 00:16:24,036 --> 00:16:27,356 Speaker 1: but she also had the self awareness to know that 269 00:16:27,396 --> 00:16:29,436 Speaker 1: it would have happened without her. I mean, she said 270 00:16:29,476 --> 00:16:31,996 Speaker 1: so to me directly, she said, And I'm sure she 271 00:16:31,996 --> 00:16:34,916 Speaker 1: didn't only say to me. She said, mostly I was 272 00:16:34,956 --> 00:16:39,276 Speaker 1: born at the right time. A generation came where the 273 00:16:39,356 --> 00:16:41,796 Speaker 1: law of sex equality was going to have to change. 274 00:16:42,516 --> 00:16:45,676 Speaker 1: And exactly who would change it and exactly how was 275 00:16:45,676 --> 00:16:48,436 Speaker 1: a matter of contingencies like who's around and who steps up. 276 00:16:48,916 --> 00:16:52,716 Speaker 1: And if it had not been Ruth Bader Ginsburg, maybe 277 00:16:52,716 --> 00:16:54,276 Speaker 1: it would have taken a little bit longer, and maybe 278 00:16:54,316 --> 00:16:56,276 Speaker 1: it would have happened a little bit differently, but the 279 00:16:56,316 --> 00:16:59,396 Speaker 1: big arc of history on that issue would have looked 280 00:16:59,596 --> 00:17:04,676 Speaker 1: more or less like it looks the decision not to 281 00:17:04,716 --> 00:17:09,356 Speaker 1: retire during the Obama administration, more particularly during the Obama station, 282 00:17:09,356 --> 00:17:12,836 Speaker 1: when there was a Democratic Senate mainly very large for 283 00:17:12,876 --> 00:17:15,476 Speaker 1: a long time in the development of a lot of 284 00:17:15,516 --> 00:17:19,876 Speaker 1: things in American law. In a moment, will transition to 285 00:17:19,996 --> 00:17:24,796 Speaker 1: talking about the trajectory of where we're going. But before 286 00:17:24,796 --> 00:17:27,116 Speaker 1: we do, one of the things that constitution law offreessors 287 00:17:27,156 --> 00:17:30,196 Speaker 1: like you and like me try to do is that 288 00:17:30,276 --> 00:17:36,116 Speaker 1: we try to figure out the legacy of justices of 289 00:17:36,196 --> 00:17:39,676 Speaker 1: the Supreme Court. And I don't think it's too soon 290 00:17:39,836 --> 00:17:43,236 Speaker 1: to start asking that question about Justice Ginsburg. So let 291 00:17:43,236 --> 00:17:47,196 Speaker 1: me start by asking you what is your understanding of 292 00:17:47,236 --> 00:17:52,196 Speaker 1: the long term contributions that Justice Ginsburg made the constitutional 293 00:17:52,236 --> 00:17:55,316 Speaker 1: law when she was a justice. You've mentioned already, and 294 00:17:55,316 --> 00:17:58,596 Speaker 1: it's hugely significant that she, unlike most other justices except 295 00:17:58,636 --> 00:18:00,676 Speaker 1: maybe three good Marshal, played a big role in the 296 00:18:00,676 --> 00:18:03,836 Speaker 1: formation of constitutional law before she was a justice. But 297 00:18:03,956 --> 00:18:06,796 Speaker 1: I'm talking about after she was appointed by a Bill 298 00:18:06,836 --> 00:18:08,716 Speaker 1: Clinton to the Supreme Court. What do you see as 299 00:18:09,156 --> 00:18:15,956 Speaker 1: signal contributions. So I think her signal contributions from a 300 00:18:16,076 --> 00:18:21,916 Speaker 1: technical legal perspective are going to be things from descents 301 00:18:22,636 --> 00:18:27,556 Speaker 1: that will get remembered and used. I think particularly of 302 00:18:27,956 --> 00:18:30,356 Speaker 1: a very apt thing that she said in descent in 303 00:18:30,396 --> 00:18:35,076 Speaker 1: Shelby County versus Holder, which was the case in which 304 00:18:35,236 --> 00:18:39,156 Speaker 1: the Supreme Court gutted the Voting Rights Act, where to 305 00:18:39,316 --> 00:18:43,116 Speaker 1: sum up, the majority of the Supreme Court said, this 306 00:18:43,196 --> 00:18:46,756 Speaker 1: is not the nineteen sixties anymore. The kinds of racial 307 00:18:46,756 --> 00:18:50,276 Speaker 1: discrimination that were endemic at the time are no longer 308 00:18:50,756 --> 00:18:54,836 Speaker 1: with us. The extraordinary measures of the Voting Rights Act 309 00:18:55,076 --> 00:18:59,236 Speaker 1: here are no longer necessary. And Justice Ginsberg wrote, that's 310 00:18:59,236 --> 00:19:01,476 Speaker 1: a little bit like throwing away your umbrella in a 311 00:19:01,596 --> 00:19:05,316 Speaker 1: rainstorm because you're not getting wet right, her point being 312 00:19:05,356 --> 00:19:07,596 Speaker 1: the reason that we don't see all sorts of horrible 313 00:19:07,716 --> 00:19:10,836 Speaker 1: forms of race based voter quesion is that we have 314 00:19:10,876 --> 00:19:13,996 Speaker 1: the Voting Rights Act. And I was confident at the 315 00:19:13,996 --> 00:19:16,996 Speaker 1: time that she was right, and I am yet more 316 00:19:17,116 --> 00:19:20,476 Speaker 1: confident now. How could I not be that she was right? 317 00:19:20,636 --> 00:19:24,836 Speaker 1: And so I think that warning you will be something 318 00:19:24,876 --> 00:19:30,156 Speaker 1: that constitutional lawyers, you know, will continue to hear. We'll 319 00:19:30,196 --> 00:19:41,516 Speaker 1: be back in a moment. Let me ask you, Richard, 320 00:19:41,556 --> 00:19:46,076 Speaker 1: about the opinion on gender equality or on sex equality 321 00:19:46,116 --> 00:19:49,676 Speaker 1: that was the most significant one written by Justice Ginsburgh 322 00:19:49,676 --> 00:19:50,796 Speaker 1: when she was on the Court, and that was the 323 00:19:50,876 --> 00:19:54,276 Speaker 1: VMI case involving the Virginia Military Academy, an all male 324 00:19:54,476 --> 00:19:57,876 Speaker 1: military academy run by the State of Virginia. Tell me 325 00:19:57,916 --> 00:20:00,476 Speaker 1: about her opinion there and what you think was interesting 326 00:20:00,476 --> 00:20:04,076 Speaker 1: and significant about it. So this was a case in 327 00:20:04,076 --> 00:20:07,876 Speaker 1: which the Supreme Court decided seven to one, Justice Scalia 328 00:20:08,116 --> 00:20:11,836 Speaker 1: dissenting and Justice Amis not participating, that the State of 329 00:20:11,916 --> 00:20:16,596 Speaker 1: Virginia could not maintain VMI as an all male institution. 330 00:20:17,116 --> 00:20:21,676 Speaker 1: VMI it was like a military academy that played a 331 00:20:21,836 --> 00:20:26,316 Speaker 1: very large role in the aristocracy right, social, political, and 332 00:20:26,396 --> 00:20:29,316 Speaker 1: economic of the State of Virginia, right like, if you 333 00:20:29,396 --> 00:20:34,196 Speaker 1: graduated from VMI, you were a real Virginia insider in 334 00:20:34,276 --> 00:20:38,316 Speaker 1: a very thick and powerful network of Virginia insiders. And 335 00:20:38,476 --> 00:20:42,796 Speaker 1: it drew out of a particular aristocratic tradition that fits 336 00:20:42,796 --> 00:20:46,636 Speaker 1: with all those things. The question, of course, was whether 337 00:20:47,316 --> 00:20:49,996 Speaker 1: VMI could continue to do that, given that it was 338 00:20:50,076 --> 00:20:52,796 Speaker 1: a public institution and therefore bound by the Fourteenth Amendment 339 00:20:52,796 --> 00:20:56,796 Speaker 1: and Equal Protection Clause. And after the nineteen seventies, when 340 00:20:56,876 --> 00:20:59,316 Speaker 1: the Supreme Court began to say that the Equal Protection 341 00:20:59,316 --> 00:21:02,716 Speaker 1: Clause meant, among other things, that states can't discriminate however 342 00:21:02,756 --> 00:21:04,676 Speaker 1: they want on the basis of sex, this was a 343 00:21:04,716 --> 00:21:10,076 Speaker 1: real question. The thing that I think of as most 344 00:21:10,916 --> 00:21:16,076 Speaker 1: instructive about Justice Ginsburg's opinion in the case, it was 345 00:21:16,116 --> 00:21:21,756 Speaker 1: just how simple it is. Virginia had attempted to escape 346 00:21:21,876 --> 00:21:26,996 Speaker 1: the need to integrate VMI by creating a different institution 347 00:21:27,236 --> 00:21:30,356 Speaker 1: called Mary Baldwin College. The idea was it was going 348 00:21:30,396 --> 00:21:33,636 Speaker 1: to be like VMI for women, and it is equal 349 00:21:33,756 --> 00:21:36,676 Speaker 1: but separate, you know, which once upon a time was 350 00:21:36,796 --> 00:21:40,676 Speaker 1: acceptable doctrine in the Supreme Court on race issues. And 351 00:21:40,716 --> 00:21:43,076 Speaker 1: the question was would it be especially equal and therefore 352 00:21:43,076 --> 00:21:46,796 Speaker 1: acceptable doctrine here on this sex issue. And one of 353 00:21:46,836 --> 00:21:49,956 Speaker 1: the things that in the end was the undoing of 354 00:21:50,116 --> 00:21:53,756 Speaker 1: separate but equal in the race context was the understanding 355 00:21:53,756 --> 00:21:56,356 Speaker 1: that it wasn't really equal. That is to say that 356 00:21:56,396 --> 00:21:59,916 Speaker 1: the black schools were not as well funded and not 357 00:21:59,996 --> 00:22:02,556 Speaker 1: as well resourced in other ways, did not provide the 358 00:22:02,596 --> 00:22:04,436 Speaker 1: same level of education as the white schools. It was 359 00:22:04,556 --> 00:22:08,356 Speaker 1: just farcical to pretend otherwise. Right. The Great Charles Black, 360 00:22:08,676 --> 00:22:11,716 Speaker 1: great constitutional law professor of his generation and a Texan 361 00:22:11,796 --> 00:22:16,556 Speaker 1: all of his days, famously wrote that when people insist 362 00:22:16,956 --> 00:22:19,876 Speaker 1: on the idea that the schools are in fact equal, 363 00:22:20,116 --> 00:22:23,596 Speaker 1: he could only deploy the sovereign progative of philosophers, which 364 00:22:23,636 --> 00:22:26,676 Speaker 1: was laughter and justice. Ginsberg said essentially the same thing 365 00:22:26,956 --> 00:22:30,996 Speaker 1: about Virginia's attempt to dodge in this case. She said, 366 00:22:31,156 --> 00:22:35,596 Speaker 1: nobody would ever confuse VMI with Mary Baldwin College. No 367 00:22:35,996 --> 00:22:41,676 Speaker 1: insult to Mary Baldwin College, but it doesn't provide access 368 00:22:42,076 --> 00:22:45,436 Speaker 1: to the same kinds of shared experiences and networks of 369 00:22:45,556 --> 00:22:50,796 Speaker 1: power that coming through VMI does, and that means it 370 00:22:50,796 --> 00:22:54,636 Speaker 1: can't possibly be delivering equality to the people who go there. 371 00:22:54,636 --> 00:22:56,876 Speaker 1: And here I want to say something. I will tell 372 00:22:56,876 --> 00:22:58,916 Speaker 1: a short anecdote about a wonderful thing that a student 373 00:22:58,956 --> 00:23:01,556 Speaker 1: of mine said once when I was teaching this case. 374 00:23:02,076 --> 00:23:05,756 Speaker 1: The first line of the opinion that Justice Ginsburg wrote says, 375 00:23:05,876 --> 00:23:07,276 Speaker 1: I'm not going to be able to put it exactly 376 00:23:07,276 --> 00:23:10,436 Speaker 1: from memory, but more or less, it says that Virginia 377 00:23:10,476 --> 00:23:16,916 Speaker 1: maintains an incomparable institution of higher learning, the Virginia Military Institute. 378 00:23:17,676 --> 00:23:22,036 Speaker 1: And I was teaching this case several years after it 379 00:23:22,116 --> 00:23:25,876 Speaker 1: was decided, and I asked the students, at what point 380 00:23:25,956 --> 00:23:29,676 Speaker 1: in the opinion is this case over? How far do 381 00:23:29,756 --> 00:23:33,236 Speaker 1: you have to read to know how this case is 382 00:23:33,236 --> 00:23:35,396 Speaker 1: coming out? And what I had in mind was I 383 00:23:35,436 --> 00:23:37,396 Speaker 1: want the student to say, well, in the first sentence, 384 00:23:37,516 --> 00:23:41,196 Speaker 1: VMI is described as incomparable. The word incomparable is all 385 00:23:41,236 --> 00:23:43,076 Speaker 1: you need to know. If it's I mean, it's a 386 00:23:43,076 --> 00:23:45,556 Speaker 1: compliment to VMI. But if it's incomparable, it's not equal 387 00:23:45,596 --> 00:23:47,676 Speaker 1: to some other thing. So that's what I was looking for. 388 00:23:47,996 --> 00:23:51,396 Speaker 1: And the student smiled and said to me in full voice, 389 00:23:52,156 --> 00:23:56,796 Speaker 1: this case is over when it says Justice Ginsberg delivered 390 00:23:56,876 --> 00:23:59,476 Speaker 1: the opinion of the court right, which is of course 391 00:23:59,476 --> 00:24:02,516 Speaker 1: the sentence before. And I had to talk because, because 392 00:24:02,556 --> 00:24:05,196 Speaker 1: of course that's true, and it's true, not just a 393 00:24:05,276 --> 00:24:07,476 Speaker 1: true way, but been in a deep way. Right in 394 00:24:07,516 --> 00:24:10,316 Speaker 1: the world where Ruth Bader Ginsburg can be appointed and 395 00:24:10,356 --> 00:24:14,956 Speaker 1: confirmed to the Supreme Court, the world where there can 396 00:24:14,996 --> 00:24:19,876 Speaker 1: be single sex institutions of power run by states for 397 00:24:19,956 --> 00:24:23,076 Speaker 1: which we make an accept excuses is no longer the 398 00:24:23,276 --> 00:24:27,636 Speaker 1: operative legal world. There is a theme that runs through 399 00:24:27,916 --> 00:24:30,676 Speaker 1: that opinion, and especially the parts that are responsive to 400 00:24:30,716 --> 00:24:36,516 Speaker 1: Justice Galia's descent, about whether it's appropriate to think about 401 00:24:36,636 --> 00:24:41,436 Speaker 1: institutions as changing after they are made open to both 402 00:24:41,476 --> 00:24:45,956 Speaker 1: men and women. And this is connected to the brand 403 00:24:45,996 --> 00:24:49,196 Speaker 1: of feminism that Justice Ginsburg espoused, which is sometimes called 404 00:24:49,316 --> 00:24:53,196 Speaker 1: sameness feminism. In some ways, it's distinct from a slightly 405 00:24:53,276 --> 00:24:57,796 Speaker 1: later conception of feminism, according to which women bring distinct experiences, 406 00:24:58,236 --> 00:25:03,196 Speaker 1: distinct social attitudes, perhaps distinct viewpoints to a whole set 407 00:25:03,236 --> 00:25:06,756 Speaker 1: of institutions and problems in the world. That's not how 408 00:25:06,836 --> 00:25:10,036 Speaker 1: Justice Ginsburg thought, It's not how she road, and it's 409 00:25:10,076 --> 00:25:12,836 Speaker 1: not at all reflected in that opinion. She has no 410 00:25:12,956 --> 00:25:15,996 Speaker 1: time for the idea that introducing women to VMI will 411 00:25:16,116 --> 00:25:18,996 Speaker 1: change the hazing what the case I think calls the 412 00:25:18,996 --> 00:25:22,196 Speaker 1: aversive method of education. To her women can do whatever 413 00:25:22,236 --> 00:25:24,636 Speaker 1: men can do, including get nailed out in the face 414 00:25:24,676 --> 00:25:27,076 Speaker 1: and yell at others in the yes, yes, including the 415 00:25:27,116 --> 00:25:31,556 Speaker 1: adversitive method. Because the argument was simply for equality of 416 00:25:31,556 --> 00:25:35,116 Speaker 1: the sexes. It's as simple as that if men, then women. 417 00:25:35,476 --> 00:25:40,396 Speaker 1: Women can be astronauts and basketball players and chemists just 418 00:25:40,676 --> 00:25:44,716 Speaker 1: like men. That is all. It was not a claim 419 00:25:45,556 --> 00:25:51,596 Speaker 1: that society needed to be remade in some other way 420 00:25:52,476 --> 00:25:56,476 Speaker 1: than the inclusion of women on equal terms with men 421 00:25:57,116 --> 00:26:01,996 Speaker 1: in the existing structures. I don't want that to sound 422 00:26:02,756 --> 00:26:05,276 Speaker 1: more limited than it is. And in two ways, when 423 00:26:05,516 --> 00:26:08,676 Speaker 1: first she did understand that some things about institutions had 424 00:26:08,676 --> 00:26:11,236 Speaker 1: to change if women were going to be in them. 425 00:26:11,596 --> 00:26:14,076 Speaker 1: When she was first on the Columbia law faculty, there 426 00:26:14,116 --> 00:26:16,556 Speaker 1: was no women's bathroom, So like, that's got to change. 427 00:26:16,916 --> 00:26:20,276 Speaker 1: And I should also say, we take so much of 428 00:26:20,276 --> 00:26:22,636 Speaker 1: the success of that wave of the women's movement, for granted, 429 00:26:23,196 --> 00:26:26,876 Speaker 1: from the perspective of nineteen thirty, the perspective of justice 430 00:26:26,916 --> 00:26:30,996 Speaker 1: Ginsburg's childhood, the idea that you could achieve that kind 431 00:26:31,036 --> 00:26:34,836 Speaker 1: of sameness equality was enormously heavy lift. You know, in 432 00:26:34,876 --> 00:26:38,596 Speaker 1: the annals of human history, it is hard to identify 433 00:26:38,796 --> 00:26:44,516 Speaker 1: movements for human liberation, equality, dignity that did more, faster, 434 00:26:44,916 --> 00:26:49,276 Speaker 1: more successfully than that move. And yet it is also 435 00:26:49,316 --> 00:26:52,876 Speaker 1: the case that by the time I knew her at 436 00:26:52,916 --> 00:26:58,556 Speaker 1: the end of the nineties, most feminist thinkers of the 437 00:26:59,196 --> 00:27:03,556 Speaker 1: younger generation had moved past that they were thinking in 438 00:27:03,636 --> 00:27:05,756 Speaker 1: terms of differences between men and women. They were thinking 439 00:27:05,796 --> 00:27:09,436 Speaker 1: in terms of more thorough going kinds of social change. 440 00:27:10,076 --> 00:27:13,116 Speaker 1: They were more inclined to say things like, the fact 441 00:27:13,196 --> 00:27:16,516 Speaker 1: that VMI has not been hospitable for women indicates that 442 00:27:16,556 --> 00:27:20,556 Speaker 1: there's something wrong with an institution like VMI in the 443 00:27:20,596 --> 00:27:23,276 Speaker 1: way that it does things. And if VMI can't survive 444 00:27:23,516 --> 00:27:27,476 Speaker 1: with women in it, then maybe it's okay that VMI 445 00:27:27,516 --> 00:27:30,516 Speaker 1: doesn't survive. Maybe that's a kind of progress rather than 446 00:27:30,556 --> 00:27:34,836 Speaker 1: thinking the goal is simply equality within the existing world 447 00:27:34,836 --> 00:27:37,516 Speaker 1: of institutions. But again, I want to say, though her 448 00:27:37,556 --> 00:27:41,956 Speaker 1: perspective is certainly limited in this respect from the perspective 449 00:27:41,956 --> 00:27:45,316 Speaker 1: of the generations that came after her, we should not 450 00:27:45,516 --> 00:27:52,276 Speaker 1: underestimate the achievements that was entailed in making her perspective 451 00:27:52,396 --> 00:27:54,876 Speaker 1: successful enough so as to seem like a thing that 452 00:27:54,916 --> 00:27:59,236 Speaker 1: we needed to move beyond. Last question, Richard, A lot 453 00:27:59,356 --> 00:28:02,116 Speaker 1: is about to happen and it's going to be very complicated. 454 00:28:03,036 --> 00:28:07,396 Speaker 1: Any thoughts on how Justice Ginsburg's own legacy and own 455 00:28:07,476 --> 00:28:11,596 Speaker 1: views should inform the way we think and talk in 456 00:28:11,636 --> 00:28:15,156 Speaker 1: the difficult days that are coming, I wish they would. 457 00:28:16,796 --> 00:28:21,196 Speaker 1: I think that the horrible circus that attends all changes 458 00:28:21,356 --> 00:28:25,036 Speaker 1: of personnel at the Supreme Court in our days is 459 00:28:25,076 --> 00:28:28,116 Speaker 1: a bad thing for the Republic. It's a symptom and 460 00:28:28,236 --> 00:28:31,596 Speaker 1: a cause of bad things about our legal system and 461 00:28:31,596 --> 00:28:37,116 Speaker 1: our constitutional system, starting with the fact that the Supreme 462 00:28:37,156 --> 00:28:41,956 Speaker 1: Court is such a symbolically salient institution that gets people very, 463 00:28:42,036 --> 00:28:46,076 Speaker 1: very exercised, and the fact that the justices are you know, 464 00:28:46,276 --> 00:28:50,356 Speaker 1: we treat them as titled nobility in in a mystical way, 465 00:28:50,676 --> 00:28:54,636 Speaker 1: we treat them as vicars of the Constitution. America is, 466 00:28:54,716 --> 00:28:57,836 Speaker 1: you know, officially anyway, and maybe even reality, it's not 467 00:28:57,996 --> 00:29:02,636 Speaker 1: a country founded on our common ancestry or you know, 468 00:29:02,676 --> 00:29:05,196 Speaker 1: a set of thick ethnic traditions. Of America at its 469 00:29:05,196 --> 00:29:07,836 Speaker 1: best and maybe in reality is an idea, but it's 470 00:29:07,876 --> 00:29:11,116 Speaker 1: not exactly the same idea of for everyone, and for 471 00:29:11,356 --> 00:29:14,556 Speaker 1: most of us, the idea is linked deeply with the 472 00:29:14,596 --> 00:29:19,116 Speaker 1: Constitution as we understand it, and the Supreme Court justices 473 00:29:19,116 --> 00:29:22,196 Speaker 1: I think it's a very unfortunate thing. Supreme Court justices 474 00:29:22,196 --> 00:29:24,916 Speaker 1: in our generation go through the world as the Constitution 475 00:29:24,996 --> 00:29:28,316 Speaker 1: made flesh, and that means that the conflict over who 476 00:29:28,316 --> 00:29:30,196 Speaker 1: they're going to be is just so deeply intense in 477 00:29:30,236 --> 00:29:33,276 Speaker 1: a way that exceeds the practical stakes of who controls 478 00:29:33,276 --> 00:29:36,516 Speaker 1: the court, and those practical states are too high already. 479 00:29:36,556 --> 00:29:39,556 Speaker 1: It's why I wish we had a system in which 480 00:29:39,956 --> 00:29:41,996 Speaker 1: Supreme Court justice is rotated out of office on a 481 00:29:42,036 --> 00:29:45,956 Speaker 1: regular schedule, rather than just by happenstance of death or 482 00:29:45,996 --> 00:29:48,156 Speaker 1: a choice of retirement. Right. I think we'd be much 483 00:29:48,156 --> 00:29:49,796 Speaker 1: better off. But given that we are where we are, 484 00:29:51,356 --> 00:29:54,396 Speaker 1: I wish very much, even for reasons that I hadn't before, 485 00:29:55,276 --> 00:29:59,236 Speaker 1: that the Republican Senate had confirmed Merrick Garland in twenty sixteen. 486 00:30:00,036 --> 00:30:04,956 Speaker 1: Here's an alternative historical story for you. The Republican Senate says, Okay, 487 00:30:05,236 --> 00:30:08,156 Speaker 1: our party controlled the Supreme Court for a very long time. 488 00:30:08,556 --> 00:30:12,316 Speaker 1: One of the teachers of constitutional democracy is eventually you 489 00:30:12,316 --> 00:30:16,796 Speaker 1: have to take turns. And President Obama would have appointed Garland, 490 00:30:17,396 --> 00:30:20,076 Speaker 1: and there would have been a small Democratic majority on 491 00:30:20,116 --> 00:30:22,396 Speaker 1: the Sutreame Court. It would have come at a really 492 00:30:22,396 --> 00:30:25,036 Speaker 1: good time right, the Trump administration would have been really 493 00:30:25,036 --> 00:30:27,956 Speaker 1: an excellent time to have a small Democratic majority on 494 00:30:27,956 --> 00:30:30,596 Speaker 1: the Supreme Court. A bunch of things about how the 495 00:30:30,596 --> 00:30:33,036 Speaker 1: courts have handled the Trump administration or failed to handle 496 00:30:33,036 --> 00:30:35,876 Speaker 1: the Trump administration would have gone down a little bit differently, 497 00:30:35,916 --> 00:30:37,076 Speaker 1: And I don't think they would have gone down on 498 00:30:37,076 --> 00:30:40,316 Speaker 1: a strictly partisan way. If there have been five votes 499 00:30:40,436 --> 00:30:44,236 Speaker 1: against the Trump administration and your Trump versus Hawaii, the 500 00:30:44,236 --> 00:30:46,916 Speaker 1: travel band case, or in a bunch of other cases 501 00:30:46,916 --> 00:30:48,396 Speaker 1: that we can think of, I bet there would have 502 00:30:48,396 --> 00:30:51,236 Speaker 1: been six or seven votes, and those things could have 503 00:30:51,276 --> 00:30:54,516 Speaker 1: gone better. And then if everything else day is the same, 504 00:30:54,556 --> 00:30:57,476 Speaker 1: and we imagine Justice Ginsburg dies at the end of 505 00:30:57,476 --> 00:31:02,476 Speaker 1: the summer of twenty twenty and is replaced by Republican appointee, 506 00:31:03,196 --> 00:31:07,316 Speaker 1: then there's much less reason for Democrats to feel that 507 00:31:07,356 --> 00:31:10,996 Speaker 1: they've been cheated over and over again, like we got 508 00:31:11,036 --> 00:31:13,396 Speaker 1: ours and you got yours, and like, you know, those 509 00:31:13,436 --> 00:31:16,956 Speaker 1: are the rules who playground basketball. And now four years 510 00:31:17,076 --> 00:31:20,756 Speaker 1: later we are where we were with a five four 511 00:31:20,996 --> 00:31:24,356 Speaker 1: Republican majority on the Court, which is to say the 512 00:31:24,436 --> 00:31:29,236 Speaker 1: world of conservative lawyers would still have been ideologically much 513 00:31:29,276 --> 00:31:31,036 Speaker 1: more in the driver's seat in the Supreme Court than 514 00:31:31,036 --> 00:31:34,396 Speaker 1: the liberals right. But for this short interlude, we would 515 00:31:34,396 --> 00:31:38,996 Speaker 1: have gotten there without a lot of pain and a 516 00:31:39,036 --> 00:31:43,596 Speaker 1: lot of recrimination that I fear is only going to 517 00:31:43,596 --> 00:31:48,796 Speaker 1: get worse over the next several weeks. Richard, Thank you 518 00:31:49,516 --> 00:31:53,876 Speaker 1: for sharing your experiences and your thoughts about Justice Ruth 519 00:31:53,916 --> 00:31:57,396 Speaker 1: Bader Ginsburg with me. Thank you more deeply for the 520 00:31:57,716 --> 00:32:00,396 Speaker 1: literally thousands of conversations that you and I have had 521 00:32:00,396 --> 00:32:03,156 Speaker 1: about constitutional law over the years, and I look forward 522 00:32:03,196 --> 00:32:05,036 Speaker 1: to having more of them with you, some of them 523 00:32:05,316 --> 00:32:08,036 Speaker 1: here on deep background. Thanks for joining me. No, I'm 524 00:32:08,076 --> 00:32:12,156 Speaker 1: delighted to have been here. I am grateful for the 525 00:32:12,316 --> 00:32:18,236 Speaker 1: law relationship that we've maintained in thinking about the law. 526 00:32:21,556 --> 00:32:25,956 Speaker 1: Hearing Richard talk about Justice Ginsburg's legacy is a powerful 527 00:32:25,996 --> 00:32:29,436 Speaker 1: reminder of what the law can do and of what 528 00:32:29,516 --> 00:32:34,916 Speaker 1: our Constitution can do when rightly interpreted. Justice Ginsburg's life 529 00:32:35,196 --> 00:32:39,836 Speaker 1: was entwined with the struggle to create equality via the 530 00:32:39,916 --> 00:32:44,476 Speaker 1: guarantees of the law and the Constitution. She became, while 531 00:32:44,516 --> 00:32:47,476 Speaker 1: serving as a Supreme Court justice, one of the keepers 532 00:32:47,556 --> 00:32:50,836 Speaker 1: of the constitutional flame, and in that role she not 533 00:32:50,876 --> 00:32:56,076 Speaker 1: only made profound contributions, she also simultaneously assumed a national 534 00:32:56,156 --> 00:33:00,276 Speaker 1: status that enabled her to inspire a whole new generation 535 00:33:00,716 --> 00:33:05,876 Speaker 1: of young people, especially young women. That said, Richard also 536 00:33:05,956 --> 00:33:09,076 Speaker 1: hinted that the cult of personality that began to grow 537 00:33:09,276 --> 00:33:11,556 Speaker 1: up around Justice Ginsburg towards the end of her career 538 00:33:12,036 --> 00:33:15,676 Speaker 1: may not have been altogether positive, and he expressed a worry, 539 00:33:15,956 --> 00:33:19,556 Speaker 1: a worry that I share that it's possible that Justice 540 00:33:19,596 --> 00:33:23,116 Speaker 1: Ginsburg's choice to remain on the Supreme Court and her 541 00:33:23,236 --> 00:33:27,316 Speaker 1: untimely death while Donald Trump was president and the Senate 542 00:33:27,356 --> 00:33:30,916 Speaker 1: was controlled by Republicans might turn out to have very 543 00:33:30,956 --> 00:33:35,556 Speaker 1: troubling long term consequences for the Supreme Court and hence 544 00:33:35,796 --> 00:33:40,076 Speaker 1: for the Constitution itself. We will continue to cover the 545 00:33:40,116 --> 00:33:43,516 Speaker 1: story of what happens in the aftermath of Justice Ginsburg's death, 546 00:33:44,116 --> 00:33:47,596 Speaker 1: but for now, what's appropriate is for us to mourn her, 547 00:33:47,956 --> 00:33:51,876 Speaker 1: to appreciate her legacy, and to value the tremendous contribution 548 00:33:52,316 --> 00:33:55,796 Speaker 1: that she made to human equality here in the United States. 549 00:33:56,516 --> 00:33:58,996 Speaker 1: Until the next time I speak to you, be careful, 550 00:33:59,316 --> 00:34:04,196 Speaker 1: be safe, and be well. Deep background is brought to 551 00:34:04,236 --> 00:34:07,596 Speaker 1: you by Pushkin Industries. Our producer is Lydia Jean Cott, 552 00:34:07,916 --> 00:34:11,596 Speaker 1: our engineer is Martine Gonzales, and our showrunner is Sophie mckibbon. 553 00:34:12,036 --> 00:34:15,596 Speaker 1: Theme music by Luis GERA special thanks to the Pushkin Brass, 554 00:34:15,716 --> 00:34:20,396 Speaker 1: Malcolm Clodwell, Jacob Weisberg, and Mia Lobel. I'm Noah Feldman. 555 00:34:20,636 --> 00:34:23,276 Speaker 1: You can find me on Twitter at Noah R. Feldman. 556 00:34:23,716 --> 00:34:26,116 Speaker 1: I also have a new book out called The Arab Winter, 557 00:34:26,356 --> 00:34:28,956 Speaker 1: A Tragedy. I'd be delighted if you checked it out. 558 00:34:29,316 --> 00:34:31,676 Speaker 1: I write a column from Bloomberg Opinion, which you can 559 00:34:31,716 --> 00:34:36,116 Speaker 1: find at bloomberg dot com slash Feldman. To discover Bloomberg's 560 00:34:36,116 --> 00:34:39,556 Speaker 1: original state of podcasts, go to Bloomberg dot com slash 561 00:34:39,596 --> 00:34:42,796 Speaker 1: podcasts and if you like what you heard today, please 562 00:34:42,796 --> 00:34:45,836 Speaker 1: write a review or tell a friend. This is deep 563 00:34:45,876 --> 00:34:46,396 Speaker 1: background