WEBVTT - Remembering Justice Ginsburg 0:00:15.356 --> 0:00:21.956 Pushkin from Pushkin Industries. This is Deep Background, the show 0:00:21.956 --> 0:00:25.596 where we explored the stories behind the stories in the news. 0:00:26.116 --> 0:00:31.316 I'm Noah Feldman. Last Friday, Justice Ruth Bader Ginsberg died 0:00:31.596 --> 0:00:36.076 in office at the age of eighty seven. Justice Ginsburg 0:00:36.196 --> 0:00:40.276 was a central figure in the struggle for women's equality. 0:00:40.876 --> 0:00:44.596 She argued cases before the US Supreme Court that established 0:00:44.636 --> 0:00:49.636 important principles of equality for men and women. She then 0:00:49.716 --> 0:00:53.156 became a federal judge and a Supreme Court justice, and 0:00:53.276 --> 0:00:55.636 then towards the end of her time on the bench, 0:00:56.036 --> 0:00:59.836 she became something more than that. She became a national celebrity, 0:01:00.276 --> 0:01:06.156 the stop called Notorious RBG here to discuss Ginsberg's life 0:01:06.236 --> 0:01:10.036 and her legacy, particularly her legacy as a jury. We're 0:01:10.116 --> 0:01:14.196 joined by Richard Primus. Richard is a professor of constitutional 0:01:14.276 --> 0:01:17.356 law at the University of Michigan. He clerked for Justice 0:01:17.396 --> 0:01:21.516 Ginsburg in the nineteen ninety nine Supreme Court term. Richard 0:01:21.596 --> 0:01:24.596 is also the person with whom my education and constitutional 0:01:24.676 --> 0:01:28.396 law has been most closely entangled. He and I first 0:01:28.436 --> 0:01:30.956 met on our very first day of freshman year. We 0:01:31.036 --> 0:01:34.636 studied constitutional law together in college. We talked about it 0:01:34.716 --> 0:01:38.036 constantly when we were together in Oxford. We talked about 0:01:38.076 --> 0:01:40.916 it further when we went to law school together, and 0:01:41.036 --> 0:01:43.956 now we're in the same profession and we continue to 0:01:43.996 --> 0:01:47.716 speak about the Constitution of its development. There's nobody who's 0:01:47.716 --> 0:01:50.516 influenced me more, there's no one who might trust more, 0:01:50.796 --> 0:01:52.676 and there's no one with whom I thought it would 0:01:52.676 --> 0:02:02.196 be more appropriate to discuss Justice Ginsburg and the Constitution. Richard, 0:02:02.236 --> 0:02:05.636 thank you so much for joining me. Let's start with 0:02:06.036 --> 0:02:09.476 how you met Justice Ginsburg for the first time, which 0:02:09.516 --> 0:02:11.636 I think must have been when you went to interview 0:02:11.836 --> 0:02:14.916 to be her lot clerk. It was. It was in 0:02:14.996 --> 0:02:19.356 the fall of nineteen ninety seven. I was a thirty 0:02:19.396 --> 0:02:23.596 year law student and I had been told that she 0:02:23.716 --> 0:02:27.196 was taking applications for two years out the year that 0:02:27.196 --> 0:02:30.036 I would have been eligible to clerk. And I sent 0:02:30.116 --> 0:02:34.516 in materials and I was in my apartment in New 0:02:34.556 --> 0:02:38.956 Haven and the phone rang and a woman identified herself 0:02:38.996 --> 0:02:41.796 as calling from Justice Ginsburg's chambers and said she wanted 0:02:41.836 --> 0:02:44.316 to speak to me. That I say that the Justice 0:02:44.876 --> 0:02:48.116 wanted to speak to me. Could I be available a 0:02:48.156 --> 0:02:51.156 couple of days later? And I thought, yes, yes I could, 0:02:51.396 --> 0:02:53.556 And I hopped on a train and I went down 0:02:53.556 --> 0:02:58.356 to DC, and I remember going in and the marshals 0:02:58.396 --> 0:03:02.676 taking me to her chambers and meeting her clerks who 0:03:02.756 --> 0:03:06.636 interviewed me, and then I was told the Justice would 0:03:06.636 --> 0:03:10.476 see me, and I walked into her own private and 0:03:10.916 --> 0:03:13.676 I was looking at one of the biggest office rooms 0:03:13.716 --> 0:03:16.156 I had ever seen, and one of the smallest people 0:03:16.436 --> 0:03:21.356 I had ever seen inhabiting such an office. And she 0:03:21.516 --> 0:03:24.636 had a very very big smile from behind some very 0:03:24.756 --> 0:03:29.076 very big glasses, and it felt warm, it felt welcoming, 0:03:29.156 --> 0:03:30.796 and I'd never met her before, and she was the 0:03:30.836 --> 0:03:33.236 most powerful person I'd ever met, but she made me 0:03:33.316 --> 0:03:34.636 feel that she was glad to see me. And we 0:03:34.676 --> 0:03:38.716 sat down and we talked for maybe twenty minutes. She 0:03:38.836 --> 0:03:43.316 was well prepared, she had read materials that I had submitted, 0:03:43.996 --> 0:03:47.476 and at the end of the time she said, you know, 0:03:47.556 --> 0:03:49.916 with no fanfare, you know, as if she was saying, 0:03:50.036 --> 0:03:52.076 you know, don't forget your umbrella. On the way out, 0:03:52.556 --> 0:03:57.316 she said, well, i'd certainly like here. I noticed that 0:03:57.396 --> 0:04:00.356 my voice slows down as I recall what she said, 0:04:00.396 --> 0:04:04.756 because she was very famously very slow. I'm a slow speaker, 0:04:04.876 --> 0:04:08.156 and she was a full tick slower than I am. 0:04:08.236 --> 0:04:17.236 She said, well, if if it will work for you, 0:04:17.436 --> 0:04:22.036 I'd be very happy to have you here clerk for me. 0:04:23.396 --> 0:04:25.956 And I thought, yes, yes, that would work for me 0:04:25.996 --> 0:04:28.716 a great deal. And she shook my hand and gave 0:04:28.756 --> 0:04:31.116 me a little hugg and sent me on my way. 0:04:31.236 --> 0:04:33.356 And about a year and a half later I moved 0:04:33.436 --> 0:04:35.916 down to DC to start the job. Can I ask 0:04:35.916 --> 0:04:38.196 you about the rhythm of that conversation. I mean you 0:04:38.276 --> 0:04:42.916 mentioned that Justice Kinsburg spoke slowly. That's a substantial understatement. 0:04:43.636 --> 0:04:45.636 I mean, I'm a fast talker and how a slow talker, 0:04:45.676 --> 0:04:48.796 so maybe for me the difference felt even greater. But 0:04:48.916 --> 0:04:51.196 I my experience of her was that I had never 0:04:51.236 --> 0:04:56.076 met anybody who spoke with such long pauses between things 0:04:56.076 --> 0:04:58.076 that she said. So how did the rhythm of the 0:04:58.116 --> 0:05:02.716 conversation go? Because you're also a very rhythmic conversationalist, So 0:05:03.196 --> 0:05:07.236 the rhythm of the conversation was slow, as were all 0:05:07.316 --> 0:05:12.316 subsequent conversations I ever had with her. One of the 0:05:12.356 --> 0:05:15.116 clerks who talks to me before I went and gave 0:05:15.156 --> 0:05:18.196 me a piece of advice that I found very useful, 0:05:18.236 --> 0:05:20.236 in which I then passed on to other people who 0:05:20.276 --> 0:05:23.196 met the Justice later. He said, I tried to work 0:05:23.276 --> 0:05:26.956 myself into a sort of zen state before I talk 0:05:27.316 --> 0:05:33.276 with the justice, slow way down and take what comes 0:05:33.316 --> 0:05:36.796 as it comes and wait in that conversation. I practiced that, 0:05:36.836 --> 0:05:40.916 and then in sensimen conversations, you know, slow your breath down. Wait. 0:05:41.516 --> 0:05:46.916 If she pauses, it doesn't necessarily mean she's done. It 0:05:47.076 --> 0:05:50.796 usually just means she's thinking. Give yourself, you know, sort 0:05:50.796 --> 0:05:54.036 of like a full for Mississippi count after she's done, 0:05:54.196 --> 0:05:58.756 to conclude that she's finished, and then answer what was 0:05:58.796 --> 0:06:04.156 that about? Why was Justice Ginsburg's speech style so remarkable 0:06:04.876 --> 0:06:06.836 so unusual? I mean, you said she was thinking, and 0:06:06.876 --> 0:06:09.396 there's no question that she was thinking, But she was 0:06:09.396 --> 0:06:15.956 an extraordinarily brilliant woman and intellectually speaking extremely quick, so 0:06:16.276 --> 0:06:18.676 I can't that can't be a complete explaination. There was 0:06:18.756 --> 0:06:22.196 some other thing going on there. What do you think 0:06:22.236 --> 0:06:26.236 it was. It's true she had a very quick mind, 0:06:26.956 --> 0:06:29.036 very quick you know, she would see four different things 0:06:29.076 --> 0:06:32.996 happening all at the same time. But it's a mistake 0:06:33.076 --> 0:06:36.956 to think that people who do that also don't get 0:06:36.996 --> 0:06:40.116 something out of pausing and thinking. Yet more, I think 0:06:40.156 --> 0:06:43.116 that's undervalued. I do think that was happening, but I 0:06:43.116 --> 0:06:46.796 think you're right, it's more than that, And I associate 0:06:46.876 --> 0:06:49.716 it with two things. And it's very hard for me 0:06:49.756 --> 0:06:52.396 to know how much there's real causality here and how 0:06:52.476 --> 0:06:54.756 much this is a just so story that I would 0:06:54.796 --> 0:06:57.436 be telling as a matter of associations. But I'll give 0:06:57.596 --> 0:07:03.796 these two associations. The first is Justice Ginsberg was extremely 0:07:03.836 --> 0:07:07.716 careful in all of her work. She could see the 0:07:07.756 --> 0:07:11.236 answer to a legal problem very fast. But it's one 0:07:11.276 --> 0:07:13.676 thing to see the answer to the legal problem very fast, 0:07:13.756 --> 0:07:16.236 and another to say Okay, done with that, you know, 0:07:16.276 --> 0:07:19.636 like not thinking about it more right, moving on, and 0:07:19.716 --> 0:07:22.636 another thing to say, Okay, I've seen it. Now I'm 0:07:22.636 --> 0:07:25.076 going to make super sure. I'm going to stress test 0:07:25.116 --> 0:07:28.036 it four or five different ways. I'm going to set 0:07:28.076 --> 0:07:30.236 it aside and come back to it to make sure. 0:07:30.676 --> 0:07:35.156 Justice Ginsberg was very much in the latter category. As 0:07:35.196 --> 0:07:41.116 a matter of working practices. She worked very hard, long 0:07:41.276 --> 0:07:44.636 hours every day for her whole professional life, as far 0:07:44.676 --> 0:07:47.516 as I know, And part of that was just a 0:07:47.516 --> 0:07:49.156 matter of industry and get anything that's done, But part 0:07:49.156 --> 0:07:54.236 of it was being extremely thorough and careful. And I've 0:07:54.236 --> 0:07:59.596 always associated that with a fact about gender and the 0:07:59.676 --> 0:08:05.156 Justice's professional life, which is that she came of age 0:08:05.276 --> 0:08:09.636 as a prominent woman at a time when women knew 0:08:10.316 --> 0:08:13.356 that if they were going to be thought to be 0:08:13.436 --> 0:08:15.876 as good at what they were doing as the men 0:08:15.916 --> 0:08:21.076 around them, they had to perform flawlessly, where you know 0:08:21.156 --> 0:08:24.996 the man next to her only had to perform. Well, 0:08:25.516 --> 0:08:29.916 you've got to do it cleaner and better, and no mistakes, 0:08:29.996 --> 0:08:32.796 because if you make a mistake, you know the men 0:08:32.876 --> 0:08:36.596 around you will as a matter of confirmation bias. See, Oh, 0:08:36.596 --> 0:08:39.156 well she makes mistakes, right, She's not really up to it. 0:08:39.676 --> 0:08:42.516 So she did not want to make mistakes. And I 0:08:42.556 --> 0:08:46.876 think that whether that caused her to slow down, or 0:08:46.876 --> 0:08:50.476 whether she naturally was a person who worked very, very 0:08:50.556 --> 0:08:53.916 carefully and therefore she was able to do what was necessary, 0:08:53.996 --> 0:08:56.396 I don't know, right, but I think one of those. 0:08:56.916 --> 0:09:00.276 The other is a personality matter that I think is 0:09:00.316 --> 0:09:03.276 something that most people missed about the justice that took 0:09:03.276 --> 0:09:05.196 me several months of working with her to figure it out. 0:09:06.036 --> 0:09:09.716 I think she was a very shy person. I realized 0:09:10.156 --> 0:09:13.636 only several months into my clerkship that so many of 0:09:13.676 --> 0:09:17.196 her behaviors lined up with that, and I think it 0:09:17.236 --> 0:09:19.316 took me a long time to realize because she was 0:09:19.356 --> 0:09:22.196 the most powerful person I knew you, like she was 0:09:22.236 --> 0:09:24.956 in charge. You know, like what did she have to 0:09:24.956 --> 0:09:26.756 be shy about? And late in her life after the 0:09:26.796 --> 0:09:30.116 celebrity took over, you know, like, certainly people don't think 0:09:30.116 --> 0:09:33.076 of that, but I think she was a shy person. 0:09:33.196 --> 0:09:34.916 And I think she was a shy person who worked 0:09:34.916 --> 0:09:37.996 and overcame the shyness. But I think it accounted for 0:09:38.036 --> 0:09:41.436 the slow manner. I think that's completely right. And I 0:09:41.476 --> 0:09:44.876 actually think that a different narrative could have been constructed 0:09:44.876 --> 0:09:48.276 for her as somebody who really overcame with great effort 0:09:48.876 --> 0:09:52.796 a really powerful shyness that could otherwise in another person, 0:09:53.236 --> 0:09:57.196 have been genuinely debilitating. I do think that once the 0:09:57.236 --> 0:10:01.396 cult of the Notorious RBG was created, there was no 0:10:01.516 --> 0:10:04.916 convenient place for that narrative to be put in, and 0:10:04.956 --> 0:10:07.596 I think it was just read out of the documentaries 0:10:07.676 --> 0:10:10.196 and out of the myth making that surrounded her. And 0:10:10.236 --> 0:10:12.236 I want to ask you actually about that phase of 0:10:12.836 --> 0:10:17.996 RBG myth making that corresponded in time, strangely enough to 0:10:18.156 --> 0:10:22.516 the period of time when some court insiders were urging 0:10:22.556 --> 0:10:26.796 her to consider stepping down. Tell me how you, as 0:10:26.796 --> 0:10:31.916 her clerk thought about this cultification, and especially its relationship 0:10:31.956 --> 0:10:34.756 to the very delicate question which was being raised in 0:10:34.876 --> 0:10:37.916 public in print by at least some people as early 0:10:37.956 --> 0:10:41.036 as the very beginning of President Obama's second term of 0:10:41.036 --> 0:10:44.276 whether once it was known publicly that she had been 0:10:44.316 --> 0:10:47.876 diagnosed with several kinds of cancer, she should consider stepping 0:10:47.876 --> 0:10:50.516 down so that the president could appoint someone liberal to 0:10:50.516 --> 0:10:57.556 replace her. So I sometimes feel that I knew Justice 0:10:57.636 --> 0:11:01.756 Ginsburg before she was famous, by which I mean when 0:11:01.756 --> 0:11:04.436 she was merely a justice of the Supreme Court, right yep, 0:11:04.636 --> 0:11:06.956 famous to us, but not necessarily to the whole world. 0:11:07.236 --> 0:11:09.516 That's a lot of fame for when life time to 0:11:09.516 --> 0:11:13.996 be a Supreme Court justice, but not like it was later. 0:11:14.116 --> 0:11:17.196 She was famous, but she wasn't a celebrity exactly right, 0:11:17.276 --> 0:11:20.116 that's the difference. In fact, we can go even one 0:11:20.116 --> 0:11:23.356 step further. Justice Ginsburg is on the short list of 0:11:23.476 --> 0:11:26.996 justices through all of history who would have been major 0:11:27.036 --> 0:11:29.396 figures in American law even if she had never sat 0:11:29.436 --> 0:11:33.556 on the Court. She already had that plus being a justice. 0:11:33.556 --> 0:11:35.596 And yet the notorious RBG thing took it to a 0:11:35.636 --> 0:11:38.316 different level. In fact, just a suitor in his very 0:11:38.316 --> 0:11:40.996 brief publicly released statement that the Supreme Court released said 0:11:41.516 --> 0:11:44.196 she was one of the very few justices who achieved 0:11:44.196 --> 0:11:48.116 greatness before joining the court. Yeah, I think that's true. 0:11:48.796 --> 0:11:52.476 Pretty much, all Supreme Court justices are figures in American 0:11:52.596 --> 0:11:55.596 legal history simply by virtue of having been Supreme Court justices, 0:11:56.196 --> 0:11:58.996 but most of them are not major figures after the 0:11:59.036 --> 0:12:02.876 passage of a little bit of time. There's a shortish 0:12:02.996 --> 0:12:06.636 list of people who are major figures after the passage 0:12:06.636 --> 0:12:08.436 of the little time, and there's a shortish list of 0:12:08.516 --> 0:12:10.836 people who would have been major figures had they not 0:12:10.956 --> 0:12:16.316 sat on the court. So Thurgood Marshall, Louis Brandeis Joseph's story, 0:12:16.716 --> 0:12:20.316 Oliver Wendell Holmes. I'm not sure we could get to ten, 0:12:20.836 --> 0:12:23.796 and I really doubt we could get to sixteen or seventeen. 0:12:24.396 --> 0:12:27.236 She's on that list right because of the career she 0:12:27.356 --> 0:12:29.356 had and the impact that she had before she came 0:12:29.356 --> 0:12:33.956 to the court, and yet the turn that the notorious 0:12:34.036 --> 0:12:38.836 RBG took took it to an entirely different level. I 0:12:38.876 --> 0:12:45.316 had reservations about that development. I felt a little bit 0:12:45.356 --> 0:12:49.836 bad about my reservations because I had great respect for 0:12:49.916 --> 0:12:54.036 an affection for the justice, and there was a simple 0:12:54.076 --> 0:12:55.516 way in which it was good for her, and she 0:12:55.596 --> 0:12:58.596 was enjoying it, and it was useful in some ways 0:12:58.596 --> 0:13:02.156 also for things that she represented. And it happened also 0:13:02.796 --> 0:13:06.556 in the wake of her husband's death, and she was 0:13:06.596 --> 0:13:10.236 incredibly close to Marty, her husband. He was a life force, 0:13:10.676 --> 0:13:13.596 and I think that that did something for her also. 0:13:13.636 --> 0:13:15.756 So for all those reasons, it felt to me a 0:13:15.756 --> 0:13:19.156 little bit churlish to have reservations, But I had reservations. 0:13:19.316 --> 0:13:21.076 I had reservations, first of all, because I don't like 0:13:21.196 --> 0:13:26.036 cults of personality. Even when the people around whom they 0:13:26.076 --> 0:13:28.876 center are people you know, who I like a lot 0:13:29.316 --> 0:13:32.396 and admire and share values with, I still don't like 0:13:32.436 --> 0:13:36.076 cults of personality. I think they can go bad places, 0:13:36.556 --> 0:13:41.156 and I think they can affect the judgment and the 0:13:41.156 --> 0:13:44.796 self awareness of the person at the center of the cult. 0:13:45.556 --> 0:13:50.316 And I worried about that. I was someone who worried 0:13:50.876 --> 0:13:56.116 for a long time that the justice would stay too long. 0:13:56.676 --> 0:13:59.076 Not sometimes you talk about a judge staying too long, 0:13:59.436 --> 0:14:01.356 what you mean is they can't do the work anymore. 0:14:01.796 --> 0:14:04.756 I was worried about that. You know, I was in 0:14:04.796 --> 0:14:07.956 touch with the justice, including about some legal things a 0:14:07.956 --> 0:14:09.836 few times over the past year or two, and she 0:14:09.916 --> 0:14:12.116 was just as sharp there as she had ever been. 0:14:12.676 --> 0:14:15.756 But I worried about her staying too long as a 0:14:15.836 --> 0:14:20.716 legacy matter, because we live in an age, really quite 0:14:20.796 --> 0:14:26.196 unfortunately when the populating of the Supreme Court is a 0:14:26.516 --> 0:14:32.036 highly ideological thing that fought out at the most titanic 0:14:32.236 --> 0:14:37.236 levels of American politics, and I had a fear for 0:14:37.316 --> 0:14:41.116 the fate of her legacy that ran along the following lines. 0:14:41.876 --> 0:14:43.676 People always used to say that she was the Thurgood 0:14:43.676 --> 0:14:46.636 Marshal of the women's movement, and in a way that 0:14:46.676 --> 0:14:49.156 was really apt description, and my fear was that it 0:14:49.156 --> 0:14:54.116 would be only too true in the end, because maybe 0:14:54.116 --> 0:14:57.116 the single most consequential decision for the path of American 0:14:57.236 --> 0:15:00.316 law that Thurgood Marshal ever made was not to retire 0:15:00.396 --> 0:15:03.036 during the Carter administration when there were people who said 0:15:03.076 --> 0:15:05.756 he should, And as a result of his not retiring 0:15:05.836 --> 0:15:08.836 during the Carter administration, when his seat was eventually filled, 0:15:08.836 --> 0:15:13.036 it was by Clarence Thomas. And the difference over these 0:15:13.116 --> 0:15:15.716 last thirty years between Clarence Thomas on the Supreme Court 0:15:15.836 --> 0:15:18.916 and someone who Jimmy Carter might have appointed has been 0:15:18.916 --> 0:15:23.036 a really big difference in American law. And it's particularly 0:15:23.076 --> 0:15:25.876 bitter because you know, Thurgood Marshal, you know, it was 0:15:25.996 --> 0:15:31.156 giants of American law. If anyone gave his life successfully 0:15:31.796 --> 0:15:34.716 to making America a better place through the law, you know, like, 0:15:34.716 --> 0:15:37.916 how can Thurgood Marshal not beyond the shortest of lists? 0:15:38.956 --> 0:15:42.956 And yet formal Jim Crow in the South would have 0:15:43.156 --> 0:15:46.516 ended with or without Thurgood Marshall. It might have taken 0:15:46.556 --> 0:15:48.876 a little bit longer. It might have happened a little 0:15:48.876 --> 0:15:51.556 bit differently. There would have been more suffering, unjustly of 0:15:51.596 --> 0:15:54.156 African Americans, you know, for for like some number of 0:15:54.236 --> 0:15:56.996 incremental years in the meantime right, not to diminish any 0:15:57.036 --> 0:15:59.716 of that, but its days were numbered. You know, there 0:15:59.716 --> 0:16:03.716 were larger forces in play, and it would have ended 0:16:04.076 --> 0:16:08.556 with or without him. The decision about when to retire, 0:16:09.476 --> 0:16:11.676 like didn't have to be that way. That could have 0:16:11.716 --> 0:16:15.716 been different. And similarly, you know, I worried that Justice 0:16:15.756 --> 0:16:20.876 Ginsberg would retread that path. She was a very important 0:16:20.916 --> 0:16:23.636 figure in the coming of sex equality in the law, 0:16:24.036 --> 0:16:27.356 but she also had the self awareness to know that 0:16:27.396 --> 0:16:29.436 it would have happened without her. I mean, she said 0:16:29.476 --> 0:16:31.996 so to me directly, she said, And I'm sure she 0:16:31.996 --> 0:16:34.916 didn't only say to me. She said, mostly I was 0:16:34.956 --> 0:16:39.276 born at the right time. A generation came where the 0:16:39.356 --> 0:16:41.796 law of sex equality was going to have to change. 0:16:42.516 --> 0:16:45.676 And exactly who would change it and exactly how was 0:16:45.676 --> 0:16:48.436 a matter of contingencies like who's around and who steps up. 0:16:48.916 --> 0:16:52.716 And if it had not been Ruth Bader Ginsburg, maybe 0:16:52.716 --> 0:16:54.276 it would have taken a little bit longer, and maybe 0:16:54.316 --> 0:16:56.276 it would have happened a little bit differently, but the 0:16:56.316 --> 0:16:59.396 big arc of history on that issue would have looked 0:16:59.596 --> 0:17:04.676 more or less like it looks the decision not to 0:17:04.716 --> 0:17:09.356 retire during the Obama administration, more particularly during the Obama station, 0:17:09.356 --> 0:17:12.836 when there was a Democratic Senate mainly very large for 0:17:12.876 --> 0:17:15.476 a long time in the development of a lot of 0:17:15.516 --> 0:17:19.876 things in American law. In a moment, will transition to 0:17:19.996 --> 0:17:24.796 talking about the trajectory of where we're going. But before 0:17:24.796 --> 0:17:27.116 we do, one of the things that constitution law offreessors 0:17:27.156 --> 0:17:30.196 like you and like me try to do is that 0:17:30.276 --> 0:17:36.116 we try to figure out the legacy of justices of 0:17:36.196 --> 0:17:39.676 the Supreme Court. And I don't think it's too soon 0:17:39.836 --> 0:17:43.236 to start asking that question about Justice Ginsburg. So let 0:17:43.236 --> 0:17:47.196 me start by asking you what is your understanding of 0:17:47.236 --> 0:17:52.196 the long term contributions that Justice Ginsburg made the constitutional 0:17:52.236 --> 0:17:55.316 law when she was a justice. You've mentioned already, and 0:17:55.316 --> 0:17:58.596 it's hugely significant that she, unlike most other justices except 0:17:58.636 --> 0:18:00.676 maybe three good Marshal, played a big role in the 0:18:00.676 --> 0:18:03.836 formation of constitutional law before she was a justice. But 0:18:03.956 --> 0:18:06.796 I'm talking about after she was appointed by a Bill 0:18:06.836 --> 0:18:08.716 Clinton to the Supreme Court. What do you see as 0:18:09.156 --> 0:18:15.956 signal contributions. So I think her signal contributions from a 0:18:16.076 --> 0:18:21.916 technical legal perspective are going to be things from descents 0:18:22.636 --> 0:18:27.556 that will get remembered and used. I think particularly of 0:18:27.956 --> 0:18:30.356 a very apt thing that she said in descent in 0:18:30.396 --> 0:18:35.076 Shelby County versus Holder, which was the case in which 0:18:35.236 --> 0:18:39.156 the Supreme Court gutted the Voting Rights Act, where to 0:18:39.316 --> 0:18:43.116 sum up, the majority of the Supreme Court said, this 0:18:43.196 --> 0:18:46.756 is not the nineteen sixties anymore. The kinds of racial 0:18:46.756 --> 0:18:50.276 discrimination that were endemic at the time are no longer 0:18:50.756 --> 0:18:54.836 with us. The extraordinary measures of the Voting Rights Act 0:18:55.076 --> 0:18:59.236 here are no longer necessary. And Justice Ginsberg wrote, that's 0:18:59.236 --> 0:19:01.476 a little bit like throwing away your umbrella in a 0:19:01.596 --> 0:19:05.316 rainstorm because you're not getting wet right, her point being 0:19:05.356 --> 0:19:07.596 the reason that we don't see all sorts of horrible 0:19:07.716 --> 0:19:10.836 forms of race based voter quesion is that we have 0:19:10.876 --> 0:19:13.996 the Voting Rights Act. And I was confident at the 0:19:13.996 --> 0:19:16.996 time that she was right, and I am yet more 0:19:17.116 --> 0:19:20.476 confident now. How could I not be that she was right? 0:19:20.636 --> 0:19:24.836 And so I think that warning you will be something 0:19:24.876 --> 0:19:30.156 that constitutional lawyers, you know, will continue to hear. We'll 0:19:30.196 --> 0:19:41.516 be back in a moment. Let me ask you, Richard, 0:19:41.556 --> 0:19:46.076 about the opinion on gender equality or on sex equality 0:19:46.116 --> 0:19:49.676 that was the most significant one written by Justice Ginsburgh 0:19:49.676 --> 0:19:50.796 when she was on the Court, and that was the 0:19:50.876 --> 0:19:54.276 VMI case involving the Virginia Military Academy, an all male 0:19:54.476 --> 0:19:57.876 military academy run by the State of Virginia. Tell me 0:19:57.916 --> 0:20:00.476 about her opinion there and what you think was interesting 0:20:00.476 --> 0:20:04.076 and significant about it. So this was a case in 0:20:04.076 --> 0:20:07.876 which the Supreme Court decided seven to one, Justice Scalia 0:20:08.116 --> 0:20:11.836 dissenting and Justice Amis not participating, that the State of 0:20:11.916 --> 0:20:16.596 Virginia could not maintain VMI as an all male institution. 0:20:17.116 --> 0:20:21.676 VMI it was like a military academy that played a 0:20:21.836 --> 0:20:26.316 very large role in the aristocracy right, social, political, and 0:20:26.396 --> 0:20:29.316 economic of the State of Virginia, right like, if you 0:20:29.396 --> 0:20:34.196 graduated from VMI, you were a real Virginia insider in 0:20:34.276 --> 0:20:38.316 a very thick and powerful network of Virginia insiders. And 0:20:38.476 --> 0:20:42.796 it drew out of a particular aristocratic tradition that fits 0:20:42.796 --> 0:20:46.636 with all those things. The question, of course, was whether 0:20:47.316 --> 0:20:49.996 VMI could continue to do that, given that it was 0:20:50.076 --> 0:20:52.796 a public institution and therefore bound by the Fourteenth Amendment 0:20:52.796 --> 0:20:56.796 and Equal Protection Clause. And after the nineteen seventies, when 0:20:56.876 --> 0:20:59.316 the Supreme Court began to say that the Equal Protection 0:20:59.316 --> 0:21:02.716 Clause meant, among other things, that states can't discriminate however 0:21:02.756 --> 0:21:04.676 they want on the basis of sex, this was a 0:21:04.716 --> 0:21:10.076 real question. The thing that I think of as most 0:21:10.916 --> 0:21:16.076 instructive about Justice Ginsburg's opinion in the case, it was 0:21:16.116 --> 0:21:21.756 just how simple it is. Virginia had attempted to escape 0:21:21.876 --> 0:21:26.996 the need to integrate VMI by creating a different institution 0:21:27.236 --> 0:21:30.356 called Mary Baldwin College. The idea was it was going 0:21:30.396 --> 0:21:33.636 to be like VMI for women, and it is equal 0:21:33.756 --> 0:21:36.676 but separate, you know, which once upon a time was 0:21:36.796 --> 0:21:40.676 acceptable doctrine in the Supreme Court on race issues. And 0:21:40.716 --> 0:21:43.076 the question was would it be especially equal and therefore 0:21:43.076 --> 0:21:46.796 acceptable doctrine here on this sex issue. And one of 0:21:46.836 --> 0:21:49.956 the things that in the end was the undoing of 0:21:50.116 --> 0:21:53.756 separate but equal in the race context was the understanding 0:21:53.756 --> 0:21:56.356 that it wasn't really equal. That is to say that 0:21:56.396 --> 0:21:59.916 the black schools were not as well funded and not 0:21:59.996 --> 0:22:02.556 as well resourced in other ways, did not provide the 0:22:02.596 --> 0:22:04.436 same level of education as the white schools. It was 0:22:04.556 --> 0:22:08.356 just farcical to pretend otherwise. Right. The Great Charles Black, 0:22:08.676 --> 0:22:11.716 great constitutional law professor of his generation and a Texan 0:22:11.796 --> 0:22:16.556 all of his days, famously wrote that when people insist 0:22:16.956 --> 0:22:19.876 on the idea that the schools are in fact equal, 0:22:20.116 --> 0:22:23.596 he could only deploy the sovereign progative of philosophers, which 0:22:23.636 --> 0:22:26.676 was laughter and justice. Ginsberg said essentially the same thing 0:22:26.956 --> 0:22:30.996 about Virginia's attempt to dodge in this case. She said, 0:22:31.156 --> 0:22:35.596 nobody would ever confuse VMI with Mary Baldwin College. No 0:22:35.996 --> 0:22:41.676 insult to Mary Baldwin College, but it doesn't provide access 0:22:42.076 --> 0:22:45.436 to the same kinds of shared experiences and networks of 0:22:45.556 --> 0:22:50.796 power that coming through VMI does, and that means it 0:22:50.796 --> 0:22:54.636 can't possibly be delivering equality to the people who go there. 0:22:54.636 --> 0:22:56.876 And here I want to say something. I will tell 0:22:56.876 --> 0:22:58.916 a short anecdote about a wonderful thing that a student 0:22:58.956 --> 0:23:01.556 of mine said once when I was teaching this case. 0:23:02.076 --> 0:23:05.756 The first line of the opinion that Justice Ginsburg wrote says, 0:23:05.876 --> 0:23:07.276 I'm not going to be able to put it exactly 0:23:07.276 --> 0:23:10.436 from memory, but more or less, it says that Virginia 0:23:10.476 --> 0:23:16.916 maintains an incomparable institution of higher learning, the Virginia Military Institute. 0:23:17.676 --> 0:23:22.036 And I was teaching this case several years after it 0:23:22.116 --> 0:23:25.876 was decided, and I asked the students, at what point 0:23:25.956 --> 0:23:29.676 in the opinion is this case over? How far do 0:23:29.756 --> 0:23:33.236 you have to read to know how this case is 0:23:33.236 --> 0:23:35.396 coming out? And what I had in mind was I 0:23:35.436 --> 0:23:37.396 want the student to say, well, in the first sentence, 0:23:37.516 --> 0:23:41.196 VMI is described as incomparable. The word incomparable is all 0:23:41.236 --> 0:23:43.076 you need to know. If it's I mean, it's a 0:23:43.076 --> 0:23:45.556 compliment to VMI. But if it's incomparable, it's not equal 0:23:45.596 --> 0:23:47.676 to some other thing. So that's what I was looking for. 0:23:47.996 --> 0:23:51.396 And the student smiled and said to me in full voice, 0:23:52.156 --> 0:23:56.796 this case is over when it says Justice Ginsberg delivered 0:23:56.876 --> 0:23:59.476 the opinion of the court right, which is of course 0:23:59.476 --> 0:24:02.516 the sentence before. And I had to talk because, because 0:24:02.556 --> 0:24:05.196 of course that's true, and it's true, not just a 0:24:05.276 --> 0:24:07.476 true way, but been in a deep way. Right in 0:24:07.516 --> 0:24:10.316 the world where Ruth Bader Ginsburg can be appointed and 0:24:10.356 --> 0:24:14.956 confirmed to the Supreme Court, the world where there can 0:24:14.996 --> 0:24:19.876 be single sex institutions of power run by states for 0:24:19.956 --> 0:24:23.076 which we make an accept excuses is no longer the 0:24:23.276 --> 0:24:27.636 operative legal world. There is a theme that runs through 0:24:27.916 --> 0:24:30.676 that opinion, and especially the parts that are responsive to 0:24:30.716 --> 0:24:36.516 Justice Galia's descent, about whether it's appropriate to think about 0:24:36.636 --> 0:24:41.436