Speaker 1: Pushkin from Pushkin Industries. This is Deep Background, the show
Speaker 1: where we explored the stories behind the stories in the news.
Speaker 1: I'm Noah Feldman. Last Friday, Justice Ruth Bader Ginsberg died
Speaker 1: in office at the age of eighty seven. Justice Ginsburg
Speaker 1: was a central figure in the struggle for women's equality.
Speaker 1: She argued cases before the US Supreme Court that established
Speaker 1: important principles of equality for men and women. She then
Speaker 1: became a federal judge and a Supreme Court justice, and
Speaker 1: then towards the end of her time on the bench,
Speaker 1: she became something more than that. She became a national celebrity,
Speaker 1: the stop called Notorious RBG here to discuss Ginsberg's life
Speaker 1: and her legacy, particularly her legacy as a jury. We're
Speaker 1: joined by Richard Primus. Richard is a professor of constitutional
Speaker 1: law at the University of Michigan. He clerked for Justice
Speaker 1: Ginsburg in the nineteen ninety nine Supreme Court term. Richard
Speaker 1: is also the person with whom my education and constitutional
Speaker 1: law has been most closely entangled. He and I first
Speaker 1: met on our very first day of freshman year. We
Speaker 1: studied constitutional law together in college. We talked about it
Speaker 1: constantly when we were together in Oxford. We talked about
Speaker 1: it further when we went to law school together, and
Speaker 1: now we're in the same profession and we continue to
Speaker 1: speak about the Constitution of its development. There's nobody who's
Speaker 1: influenced me more, there's no one who might trust more,
Speaker 1: and there's no one with whom I thought it would
Speaker 1: be more appropriate to discuss Justice Ginsburg and the Constitution. Richard,
Speaker 1: thank you so much for joining me. Let's start with
Speaker 1: how you met Justice Ginsburg for the first time, which
Speaker 1: I think must have been when you went to interview
Speaker 1: to be her lot clerk. It was. It was in
Speaker 1: the fall of nineteen ninety seven. I was a thirty
Speaker 1: year law student and I had been told that she
Speaker 1: was taking applications for two years out the year that
Speaker 1: I would have been eligible to clerk. And I sent
Speaker 1: in materials and I was in my apartment in New
Speaker 1: Haven and the phone rang and a woman identified herself
Speaker 1: as calling from Justice Ginsburg's chambers and said she wanted
Speaker 1: to speak to me. That I say that the Justice
Speaker 1: wanted to speak to me. Could I be available a
Speaker 1: couple of days later? And I thought, yes, yes I could,
Speaker 1: And I hopped on a train and I went down
Speaker 1: to DC, and I remember going in and the marshals
Speaker 1: taking me to her chambers and meeting her clerks who
Speaker 1: interviewed me, and then I was told the Justice would
Speaker 1: see me, and I walked into her own private and
Speaker 1: I was looking at one of the biggest office rooms
Speaker 1: I had ever seen, and one of the smallest people
Speaker 1: I had ever seen inhabiting such an office. And she
Speaker 1: had a very very big smile from behind some very
Speaker 1: very big glasses, and it felt warm, it felt welcoming,
Speaker 1: and I'd never met her before, and she was the
Speaker 1: most powerful person I'd ever met, but she made me
Speaker 1: feel that she was glad to see me. And we
Speaker 1: sat down and we talked for maybe twenty minutes. She
Speaker 1: was well prepared, she had read materials that I had submitted,
Speaker 1: and at the end of the time she said, you know,
Speaker 1: with no fanfare, you know, as if she was saying,
Speaker 1: you know, don't forget your umbrella. On the way out,
Speaker 1: she said, well, i'd certainly like here. I noticed that
Speaker 1: my voice slows down as I recall what she said,
Speaker 1: because she was very famously very slow. I'm a slow speaker,
Speaker 1: and she was a full tick slower than I am.
Speaker 1: She said, well, if if it will work for you,
Speaker 1: I'd be very happy to have you here clerk for me.
Speaker 1: And I thought, yes, yes, that would work for me
Speaker 1: a great deal. And she shook my hand and gave
Speaker 1: me a little hugg and sent me on my way.
Speaker 1: And about a year and a half later I moved
Speaker 1: down to DC to start the job. Can I ask
Speaker 1: you about the rhythm of that conversation. I mean you
Speaker 1: mentioned that Justice Kinsburg spoke slowly. That's a substantial understatement.
Speaker 1: I mean, I'm a fast talker and how a slow talker,
Speaker 1: so maybe for me the difference felt even greater. But
Speaker 1: I my experience of her was that I had never
Speaker 1: met anybody who spoke with such long pauses between things
Speaker 1: that she said. So how did the rhythm of the
Speaker 1: conversation go? Because you're also a very rhythmic conversationalist, So
Speaker 1: the rhythm of the conversation was slow, as were all
Speaker 1: subsequent conversations I ever had with her. One of the
Speaker 1: clerks who talks to me before I went and gave
Speaker 1: me a piece of advice that I found very useful,
Speaker 1: in which I then passed on to other people who
Speaker 1: met the Justice later. He said, I tried to work
Speaker 1: myself into a sort of zen state before I talk
Speaker 1: with the justice, slow way down and take what comes
Speaker 1: as it comes and wait in that conversation. I practiced that,
Speaker 1: and then in sensimen conversations, you know, slow your breath down. Wait.
Speaker 1: If she pauses, it doesn't necessarily mean she's done. It
Speaker 1: usually just means she's thinking. Give yourself, you know, sort
Speaker 1: of like a full for Mississippi count after she's done,
Speaker 1: to conclude that she's finished, and then answer what was
Speaker 1: that about? Why was Justice Ginsburg's speech style so remarkable
Speaker 1: so unusual? I mean, you said she was thinking, and
Speaker 1: there's no question that she was thinking, But she was
Speaker 1: an extraordinarily brilliant woman and intellectually speaking extremely quick, so
Speaker 1: I can't that can't be a complete explaination. There was
Speaker 1: some other thing going on there. What do you think
Speaker 1: it was. It's true she had a very quick mind,
Speaker 1: very quick you know, she would see four different things
Speaker 1: happening all at the same time. But it's a mistake
Speaker 1: to think that people who do that also don't get
Speaker 1: something out of pausing and thinking. Yet more, I think
Speaker 1: that's undervalued. I do think that was happening, but I
Speaker 1: think you're right, it's more than that, And I associate
Speaker 1: it with two things. And it's very hard for me
Speaker 1: to know how much there's real causality here and how
Speaker 1: much this is a just so story that I would
Speaker 1: be telling as a matter of associations. But I'll give
Speaker 1: these two associations. The first is Justice Ginsberg was extremely
Speaker 1: careful in all of her work. She could see the
Speaker 1: answer to a legal problem very fast. But it's one
Speaker 1: thing to see the answer to the legal problem very fast,
Speaker 1: and another to say Okay, done with that, you know,
Speaker 1: like not thinking about it more right, moving on, and
Speaker 1: another thing to say, Okay, I've seen it. Now I'm
Speaker 1: going to make super sure. I'm going to stress test
Speaker 1: it four or five different ways. I'm going to set
Speaker 1: it aside and come back to it to make sure.
Speaker 1: Justice Ginsberg was very much in the latter category. As
Speaker 1: a matter of working practices. She worked very hard, long
Speaker 1: hours every day for her whole professional life, as far
Speaker 1: as I know, And part of that was just a
Speaker 1: matter of industry and get anything that's done, But part
Speaker 1: of it was being extremely thorough and careful. And I've
Speaker 1: always associated that with a fact about gender and the
Speaker 1: Justice's professional life, which is that she came of age
Speaker 1: as a prominent woman at a time when women knew
Speaker 1: that if they were going to be thought to be
Speaker 1: as good at what they were doing as the men
Speaker 1: around them, they had to perform flawlessly, where you know
Speaker 1: the man next to her only had to perform. Well,
Speaker 1: you've got to do it cleaner and better, and no mistakes,
Speaker 1: because if you make a mistake, you know the men
Speaker 1: around you will as a matter of confirmation bias. See, Oh,
Speaker 1: well she makes mistakes, right, She's not really up to it.
Speaker 1: So she did not want to make mistakes. And I
Speaker 1: think that whether that caused her to slow down, or
Speaker 1: whether she naturally was a person who worked very, very
Speaker 1: carefully and therefore she was able to do what was necessary,
Speaker 1: I don't know, right, but I think one of those.
Speaker 1: The other is a personality matter that I think is
Speaker 1: something that most people missed about the justice that took
Speaker 1: me several months of working with her to figure it out.
Speaker 1: I think she was a very shy person. I realized
Speaker 1: only several months into my clerkship that so many of
Speaker 1: her behaviors lined up with that, and I think it
Speaker 1: took me a long time to realize because she was
Speaker 1: the most powerful person I knew you, like she was
Speaker 1: in charge. You know, like what did she have to
Speaker 1: be shy about? And late in her life after the
Speaker 1: celebrity took over, you know, like, certainly people don't think
Speaker 1: of that, but I think she was a shy person.
Speaker 1: And I think she was a shy person who worked
Speaker 1: and overcame the shyness. But I think it accounted for
Speaker 1: the slow manner. I think that's completely right. And I
Speaker 1: actually think that a different narrative could have been constructed
Speaker 1: for her as somebody who really overcame with great effort
Speaker 1: a really powerful shyness that could otherwise in another person,
Speaker 1: have been genuinely debilitating. I do think that once the
Speaker 1: cult of the Notorious RBG was created, there was no
Speaker 1: convenient place for that narrative to be put in, and
Speaker 1: I think it was just read out of the documentaries
Speaker 1: and out of the myth making that surrounded her. And
Speaker 1: I want to ask you actually about that phase of
Speaker 1: RBG myth making that corresponded in time, strangely enough to
Speaker 1: the period of time when some court insiders were urging
Speaker 1: her to consider stepping down. Tell me how you, as
Speaker 1: her clerk thought about this cultification, and especially its relationship
Speaker 1: to the very delicate question which was being raised in
Speaker 1: public in print by at least some people as early
Speaker 1: as the very beginning of President Obama's second term of
Speaker 1: whether once it was known publicly that she had been
Speaker 1: diagnosed with several kinds of cancer, she should consider stepping
Speaker 1: down so that the president could appoint someone liberal to
Speaker 1: replace her. So I sometimes feel that I knew Justice
Speaker 1: Ginsburg before she was famous, by which I mean when
Speaker 1: she was merely a justice of the Supreme Court, right yep,
Speaker 1: famous to us, but not necessarily to the whole world.
Speaker 1: That's a lot of fame for when life time to
Speaker 1: be a Supreme Court justice, but not like it was later.
Speaker 1: She was famous, but she wasn't a celebrity exactly right,
Speaker 1: that's the difference. In fact, we can go even one
Speaker 1: step further. Justice Ginsburg is on the short list of
Speaker 1: justices through all of history who would have been major
Speaker 1: figures in American law even if she had never sat
Speaker 1: on the Court. She already had that plus being a justice.
Speaker 1: And yet the notorious RBG thing took it to a
Speaker 1: different level. In fact, just a suitor in his very
Speaker 1: brief publicly released statement that the Supreme Court released said
Speaker 1: she was one of the very few justices who achieved
Speaker 1: greatness before joining the court. Yeah, I think that's true.
Speaker 1: Pretty much, all Supreme Court justices are figures in American
Speaker 1: legal history simply by virtue of having been Supreme Court justices,
Speaker 1: but most of them are not major figures after the
Speaker 1: passage of a little bit of time. There's a shortish
Speaker 1: list of people who are major figures after the passage
Speaker 1: of the little time, and there's a shortish list of
Speaker 1: people who would have been major figures had they not
Speaker 1: sat on the court. So Thurgood Marshall, Louis Brandeis Joseph's story,
Speaker 1: Oliver Wendell Holmes. I'm not sure we could get to ten,
Speaker 1: and I really doubt we could get to sixteen or seventeen.
Speaker 1: She's on that list right because of the career she
Speaker 1: had and the impact that she had before she came
Speaker 1: to the court, and yet the turn that the notorious
Speaker 1: RBG took took it to an entirely different level. I
Speaker 1: had reservations about that development. I felt a little bit
Speaker 1: bad about my reservations because I had great respect for
Speaker 1: an affection for the justice, and there was a simple
Speaker 1: way in which it was good for her, and she
Speaker 1: was enjoying it, and it was useful in some ways
Speaker 1: also for things that she represented. And it happened also
Speaker 1: in the wake of her husband's death, and she was
Speaker 1: incredibly close to Marty, her husband. He was a life force,
Speaker 1: and I think that that did something for her also.
Speaker 1: So for all those reasons, it felt to me a
Speaker 1: little bit churlish to have reservations, But I had reservations.
Speaker 1: I had reservations, first of all, because I don't like
Speaker 1: cults of personality. Even when the people around whom they
Speaker 1: center are people you know, who I like a lot
Speaker 1: and admire and share values with, I still don't like
Speaker 1: cults of personality. I think they can go bad places,
Speaker 1: and I think they can affect the judgment and the
Speaker 1: self awareness of the person at the center of the cult.
Speaker 1: And I worried about that. I was someone who worried
Speaker 1: for a long time that the justice would stay too long.
Speaker 1: Not sometimes you talk about a judge staying too long,
Speaker 1: what you mean is they can't do the work anymore.
Speaker 1: I was worried about that. You know, I was in
Speaker 1: touch with the justice, including about some legal things a
Speaker 1: few times over the past year or two, and she
Speaker 1: was just as sharp there as she had ever been.
Speaker 1: But I worried about her staying too long as a
Speaker 1: legacy matter, because we live in an age, really quite
Speaker 1: unfortunately when the populating of the Supreme Court is a
Speaker 1: highly ideological thing that fought out at the most titanic
Speaker 1: levels of American politics, and I had a fear for
Speaker 1: the fate of her legacy that ran along the following lines.
Speaker 1: People always used to say that she was the Thurgood
Speaker 1: Marshal of the women's movement, and in a way that
Speaker 1: was really apt description, and my fear was that it
Speaker 1: would be only too true in the end, because maybe
Speaker 1: the single most consequential decision for the path of American
Speaker 1: law that Thurgood Marshal ever made was not to retire
Speaker 1: during the Carter administration when there were people who said
Speaker 1: he should, And as a result of his not retiring
Speaker 1: during the Carter administration, when his seat was eventually filled,
Speaker 1: it was by Clarence Thomas. And the difference over these
Speaker 1: last thirty years between Clarence Thomas on the Supreme Court
Speaker 1: and someone who Jimmy Carter might have appointed has been
Speaker 1: a really big difference in American law. And it's particularly
Speaker 1: bitter because you know, Thurgood Marshal, you know, it was
Speaker 1: giants of American law. If anyone gave his life successfully
Speaker 1: to making America a better place through the law, you know, like,
Speaker 1: how can Thurgood Marshal not beyond the shortest of lists?
Speaker 1: And yet formal Jim Crow in the South would have
Speaker 1: ended with or without Thurgood Marshall. It might have taken
Speaker 1: a little bit longer. It might have happened a little
Speaker 1: bit differently. There would have been more suffering, unjustly of
Speaker 1: African Americans, you know, for for like some number of
Speaker 1: incremental years in the meantime right, not to diminish any
Speaker 1: of that, but its days were numbered. You know, there
Speaker 1: were larger forces in play, and it would have ended
Speaker 1: with or without him. The decision about when to retire,
Speaker 1: like didn't have to be that way. That could have
Speaker 1: been different. And similarly, you know, I worried that Justice
Speaker 1: Ginsberg would retread that path. She was a very important
Speaker 1: figure in the coming of sex equality in the law,
Speaker 1: but she also had the self awareness to know that
Speaker 1: it would have happened without her. I mean, she said
Speaker 1: so to me directly, she said, And I'm sure she
Speaker 1: didn't only say to me. She said, mostly I was
Speaker 1: born at the right time. A generation came where the
Speaker 1: law of sex equality was going to have to change.
Speaker 1: And exactly who would change it and exactly how was
Speaker 1: a matter of contingencies like who's around and who steps up.
Speaker 1: And if it had not been Ruth Bader Ginsburg, maybe
Speaker 1: it would have taken a little bit longer, and maybe
Speaker 1: it would have happened a little bit differently, but the
Speaker 1: big arc of history on that issue would have looked
Speaker 1: more or less like it looks the decision not to
Speaker 1: retire during the Obama administration, more particularly during the Obama station,
Speaker 1: when there was a Democratic Senate mainly very large for
Speaker 1: a long time in the development of a lot of
Speaker 1: things in American law. In a moment, will transition to
Speaker 1: talking about the trajectory of where we're going. But before
Speaker 1: we do, one of the things that constitution law offreessors
Speaker 1: like you and like me try to do is that
Speaker 1: we try to figure out the legacy of justices of
Speaker 1: the Supreme Court. And I don't think it's too soon
Speaker 1: to start asking that question about Justice Ginsburg. So let
Speaker 1: me start by asking you what is your understanding of
Speaker 1: the long term contributions that Justice Ginsburg made the constitutional
Speaker 1: law when she was a justice. You've mentioned already, and
Speaker 1: it's hugely significant that she, unlike most other justices except
Speaker 1: maybe three good Marshal, played a big role in the
Speaker 1: formation of constitutional law before she was a justice. But
Speaker 1: I'm talking about after she was appointed by a Bill
Speaker 1: Clinton to the Supreme Court. What do you see as
Speaker 1: signal contributions. So I think her signal contributions from a
Speaker 1: technical legal perspective are going to be things from descents
Speaker 1: that will get remembered and used. I think particularly of
Speaker 1: a very apt thing that she said in descent in
Speaker 1: Shelby County versus Holder, which was the case in which
Speaker 1: the Supreme Court gutted the Voting Rights Act, where to
Speaker 1: sum up, the majority of the Supreme Court said, this
Speaker 1: is not the nineteen sixties anymore. The kinds of racial
Speaker 1: discrimination that were endemic at the time are no longer
Speaker 1: with us. The extraordinary measures of the Voting Rights Act
Speaker 1: here are no longer necessary. And Justice Ginsberg wrote, that's
Speaker 1: a little bit like throwing away your umbrella in a
Speaker 1: rainstorm because you're not getting wet right, her point being
Speaker 1: the reason that we don't see all sorts of horrible
Speaker 1: forms of race based voter quesion is that we have
Speaker 1: the Voting Rights Act. And I was confident at the
Speaker 1: time that she was right, and I am yet more
Speaker 1: confident now. How could I not be that she was right?
Speaker 1: And so I think that warning you will be something
Speaker 1: that constitutional lawyers, you know, will continue to hear. We'll
Speaker 1: be back in a moment. Let me ask you, Richard,
Speaker 1: about the opinion on gender equality or on sex equality
Speaker 1: that was the most significant one written by Justice Ginsburgh
Speaker 1: when she was on the Court, and that was the
Speaker 1: VMI case involving the Virginia Military Academy, an all male
Speaker 1: military academy run by the State of Virginia. Tell me
Speaker 1: about her opinion there and what you think was interesting
Speaker 1: and significant about it. So this was a case in
Speaker 1: which the Supreme Court decided seven to one, Justice Scalia
Speaker 1: dissenting and Justice Amis not participating, that the State of
Speaker 1: Virginia could not maintain VMI as an all male institution.
Speaker 1: VMI it was like a military academy that played a
Speaker 1: very large role in the aristocracy right, social, political, and
Speaker 1: economic of the State of Virginia, right like, if you
Speaker 1: graduated from VMI, you were a real Virginia insider in
Speaker 1: a very thick and powerful network of Virginia insiders. And
Speaker 1: it drew out of a particular aristocratic tradition that fits
Speaker 1: with all those things. The question, of course, was whether
Speaker 1: VMI could continue to do that, given that it was
Speaker 1: a public institution and therefore bound by the Fourteenth Amendment
Speaker 1: and Equal Protection Clause. And after the nineteen seventies, when
Speaker 1: the Supreme Court began to say that the Equal Protection
Speaker 1: Clause meant, among other things, that states can't discriminate however
Speaker 1: they want on the basis of sex, this was a
Speaker 1: real question. The thing that I think of as most
Speaker 1: instructive about Justice Ginsburg's opinion in the case, it was
Speaker 1: just how simple it is. Virginia had attempted to escape
Speaker 1: the need to integrate VMI by creating a different institution
Speaker 1: called Mary Baldwin College. The idea was it was going
Speaker 1: to be like VMI for women, and it is equal
Speaker 1: but separate, you know, which once upon a time was
Speaker 1: acceptable doctrine in the Supreme Court on race issues. And
Speaker 1: the question was would it be especially equal and therefore
Speaker 1: acceptable doctrine here on this sex issue. And one of
Speaker 1: the things that in the end was the undoing of
Speaker 1: separate but equal in the race context was the understanding
Speaker 1: that it wasn't really equal. That is to say that
Speaker 1: the black schools were not as well funded and not
Speaker 1: as well resourced in other ways, did not provide the
Speaker 1: same level of education as the white schools. It was
Speaker 1: just farcical to pretend otherwise. Right. The Great Charles Black,
Speaker 1: great constitutional law professor of his generation and a Texan
Speaker 1: all of his days, famously wrote that when people insist
Speaker 1: on the idea that the schools are in fact equal,
Speaker 1: he could only deploy the sovereign progative of philosophers, which
Speaker 1: was laughter and justice. Ginsberg said essentially the same thing
Speaker 1: about Virginia's attempt to dodge in this case. She said,
Speaker 1: nobody would ever confuse VMI with Mary Baldwin College. No
Speaker 1: insult to Mary Baldwin College, but it doesn't provide access
Speaker 1: to the same kinds of shared experiences and networks of
Speaker 1: power that coming through VMI does, and that means it
Speaker 1: can't possibly be delivering equality to the people who go there.
Speaker 1: And here I want to say something. I will tell
Speaker 1: a short anecdote about a wonderful thing that a student
Speaker 1: of mine said once when I was teaching this case.
Speaker 1: The first line of the opinion that Justice Ginsburg wrote says,
Speaker 1: I'm not going to be able to put it exactly
Speaker 1: from memory, but more or less, it says that Virginia
Speaker 1: maintains an incomparable institution of higher learning, the Virginia Military Institute.
Speaker 1: And I was teaching this case several years after it
Speaker 1: was decided, and I asked the students, at what point
Speaker 1: in the opinion is this case over? How far do
Speaker 1: you have to read to know how this case is
Speaker 1: coming out? And what I had in mind was I
Speaker 1: want the student to say, well, in the first sentence,
Speaker 1: VMI is described as incomparable. The word incomparable is all
Speaker 1: you need to know. If it's I mean, it's a
Speaker 1: compliment to VMI. But if it's incomparable, it's not equal
Speaker 1: to some other thing. So that's what I was looking for.
Speaker 1: And the student smiled and said to me in full voice,
Speaker 1: this case is over when it says Justice Ginsberg delivered
Speaker 1: the opinion of the court right, which is of course
Speaker 1: the sentence before. And I had to talk because, because
Speaker 1: of course that's true, and it's true, not just a
Speaker 1: true way, but been in a deep way. Right in
Speaker 1: the world where Ruth Bader Ginsburg can be appointed and
Speaker 1: confirmed to the Supreme Court, the world where there can
Speaker 1: be single sex institutions of power run by states for
Speaker 1: which we make an accept excuses is no longer the
Speaker 1: operative legal world. There is a theme that runs through
Speaker 1: that opinion, and especially the parts that are responsive to
Speaker 1: Justice Galia's descent, about whether it's appropriate to think about
Speaker 1: institutions as changing after they are made open to both
Speaker 1: men and women. And this is connected to the brand
Speaker 1: of feminism that Justice Ginsburg espoused, which is sometimes called
Speaker 1: sameness feminism. In some ways, it's distinct from a slightly
Speaker 1: later conception of feminism, according to which women bring distinct experiences,
Speaker 1: distinct social attitudes, perhaps distinct viewpoints to a whole set
Speaker 1: of institutions and problems in the world. That's not how
Speaker 1: Justice Ginsburg thought, It's not how she road, and it's
Speaker 1: not at all reflected in that opinion. She has no
Speaker 1: time for the idea that introducing women to VMI will
Speaker 1: change the hazing what the case I think calls the
Speaker 1: aversive method of education. To her women can do whatever
Speaker 1: men can do, including get nailed out in the face
Speaker 1: and yell at others in the yes, yes, including the
Speaker 1: adversitive method. Because the argument was simply for equality of
Speaker 1: the sexes. It's as simple as that if men, then women.
Speaker 1: Women can be astronauts and basketball players and chemists just
Speaker 1: like men. That is all. It was not a claim
Speaker 1: that society needed to be remade in some other way
Speaker 1: than the inclusion of women on equal terms with men
Speaker 1: in the existing structures. I don't want that to sound
Speaker 1: more limited than it is. And in two ways, when
Speaker 1: first she did understand that some things about institutions had
Speaker 1: to change if women were going to be in them.
Speaker 1: When she was first on the Columbia law faculty, there
Speaker 1: was no women's bathroom, So like, that's got to change.
Speaker 1: And I should also say, we take so much of
Speaker 1: the success of that wave of the women's movement, for granted,
Speaker 1: from the perspective of nineteen thirty, the perspective of justice
Speaker 1: Ginsburg's childhood, the idea that you could achieve that kind
Speaker 1: of sameness equality was enormously heavy lift. You know, in
Speaker 1: the annals of human history, it is hard to identify
Speaker 1: movements for human liberation, equality, dignity that did more, faster,
Speaker 1: more successfully than that move. And yet it is also
Speaker 1: the case that by the time I knew her at
Speaker 1: the end of the nineties, most feminist thinkers of the
Speaker 1: younger generation had moved past that they were thinking in
Speaker 1: terms of differences between men and women. They were thinking
Speaker 1: in terms of more thorough going kinds of social change.
Speaker 1: They were more inclined to say things like, the fact
Speaker 1: that VMI has not been hospitable for women indicates that
Speaker 1: there's something wrong with an institution like VMI in the
Speaker 1: way that it does things. And if VMI can't survive
Speaker 1: with women in it, then maybe it's okay that VMI
Speaker 1: doesn't survive. Maybe that's a kind of progress rather than
Speaker 1: thinking the goal is simply equality within the existing world
Speaker 1: of institutions. But again, I want to say, though her
Speaker 1: perspective is certainly limited in this respect from the perspective
Speaker 1: of the generations that came after her, we should not
Speaker 1: underestimate the achievements that was entailed in making her perspective
Speaker 1: successful enough so as to seem like a thing that
Speaker 1: we needed to move beyond. Last question, Richard, A lot
Speaker 1: is about to happen and it's going to be very complicated.
Speaker 1: Any thoughts on how Justice Ginsburg's own legacy and own
Speaker 1: views should inform the way we think and talk in
Speaker 1: the difficult days that are coming, I wish they would.
Speaker 1: I think that the horrible circus that attends all changes
Speaker 1: of personnel at the Supreme Court in our days is
Speaker 1: a bad thing for the Republic. It's a symptom and
Speaker 1: a cause of bad things about our legal system and
Speaker 1: our constitutional system, starting with the fact that the Supreme
Speaker 1: Court is such a symbolically salient institution that gets people very,
Speaker 1: very exercised, and the fact that the justices are you know,
Speaker 1: we treat them as titled nobility in in a mystical way,
Speaker 1: we treat them as vicars of the Constitution. America is,
Speaker 1: you know, officially anyway, and maybe even reality, it's not
Speaker 1: a country founded on our common ancestry or you know,
Speaker 1: a set of thick ethnic traditions. Of America at its
Speaker 1: best and maybe in reality is an idea, but it's
Speaker 1: not exactly the same idea of for everyone, and for
Speaker 1: most of us, the idea is linked deeply with the
Speaker 1: Constitution as we understand it, and the Supreme Court justices
Speaker 1: I think it's a very unfortunate thing. Supreme Court justices
Speaker 1: in our generation go through the world as the Constitution
Speaker 1: made flesh, and that means that the conflict over who
Speaker 1: they're going to be is just so deeply intense in
Speaker 1: a way that exceeds the practical stakes of who controls
Speaker 1: the court, and those practical states are too high already.
Speaker 1: It's why I wish we had a system in which
Speaker 1: Supreme Court justice is rotated out of office on a
Speaker 1: regular schedule, rather than just by happenstance of death or
Speaker 1: a choice of retirement. Right. I think we'd be much
Speaker 1: better off. But given that we are where we are,
Speaker 1: I wish very much, even for reasons that I hadn't before,
Speaker 1: that the Republican Senate had confirmed Merrick Garland in twenty sixteen.
Speaker 1: Here's an alternative historical story for you. The Republican Senate says, Okay,
Speaker 1: our party controlled the Supreme Court for a very long time.
Speaker 1: One of the teachers of constitutional democracy is eventually you
Speaker 1: have to take turns. And President Obama would have appointed Garland,
Speaker 1: and there would have been a small Democratic majority on
Speaker 1: the Sutreame Court. It would have come at a really
Speaker 1: good time right, the Trump administration would have been really
Speaker 1: an excellent time to have a small Democratic majority on
Speaker 1: the Supreme Court. A bunch of things about how the
Speaker 1: courts have handled the Trump administration or failed to handle
Speaker 1: the Trump administration would have gone down a little bit differently,
Speaker 1: And I don't think they would have gone down on
Speaker 1: a strictly partisan way. If there have been five votes
Speaker 1: against the Trump administration and your Trump versus Hawaii, the
Speaker 1: travel band case, or in a bunch of other cases
Speaker 1: that we can think of, I bet there would have
Speaker 1: been six or seven votes, and those things could have
Speaker 1: gone better. And then if everything else day is the same,
Speaker 1: and we imagine Justice Ginsburg dies at the end of
Speaker 1: the summer of twenty twenty and is replaced by Republican appointee,
Speaker 1: then there's much less reason for Democrats to feel that
Speaker 1: they've been cheated over and over again, like we got
Speaker 1: ours and you got yours, and like, you know, those
Speaker 1: are the rules who playground basketball. And now four years
Speaker 1: later we are where we were with a five four
Speaker 1: Republican majority on the Court, which is to say the
Speaker 1: world of conservative lawyers would still have been ideologically much
Speaker 1: more in the driver's seat in the Supreme Court than
Speaker 1: the liberals right. But for this short interlude, we would
Speaker 1: have gotten there without a lot of pain and a
Speaker 1: lot of recrimination that I fear is only going to
Speaker 1: get worse over the next several weeks. Richard, Thank you
Speaker 1: for sharing your experiences and your thoughts about Justice Ruth
Speaker 1: Bader Ginsburg with me. Thank you more deeply for the
Speaker 1: literally thousands of conversations that you and I have had
Speaker 1: about constitutional law over the years, and I look forward
Speaker 1: to having more of them with you, some of them
Speaker 1: here on deep background. Thanks for joining me. No, I'm
Speaker 1: delighted to have been here. I am grateful for the
Speaker 1: law relationship that we've maintained in thinking about the law.
Speaker 1: Hearing Richard talk about Justice Ginsburg's legacy is a powerful
Speaker 1: reminder of what the law can do and of what
Speaker 1: our Constitution can do when rightly interpreted. Justice Ginsburg's life
Speaker 1: was entwined with the struggle to create equality via the
Speaker 1: guarantees of the law and the Constitution. She became, while
Speaker 1: serving as a Supreme Court justice, one of the keepers
Speaker 1: of the constitutional flame, and in that role she not
Speaker 1: only made profound contributions, she also simultaneously assumed a national
Speaker 1: status that enabled her to inspire a whole new generation
Speaker 1: of young people, especially young women. That said, Richard also
Speaker 1: hinted that the cult of personality that began to grow
Speaker 1: up around Justice Ginsburg towards the end of her career
Speaker 1: may not have been altogether positive, and he expressed a worry,
Speaker 1: a worry that I share that it's possible that Justice
Speaker 1: Ginsburg's choice to remain on the Supreme Court and her
Speaker 1: untimely death while Donald Trump was president and the Senate
Speaker 1: was controlled by Republicans might turn out to have very
Speaker 1: troubling long term consequences for the Supreme Court and hence
Speaker 1: for the Constitution itself. We will continue to cover the
Speaker 1: story of what happens in the aftermath of Justice Ginsburg's death,
Speaker 1: but for now, what's appropriate is for us to mourn her,
Speaker 1: to appreciate her legacy, and to value the tremendous contribution
Speaker 1: that she made to human equality here in the United States.
Speaker 1: Until the next time I speak to you, be careful,
Speaker 1: be safe, and be well. Deep background is brought to
Speaker 1: you by Pushkin Industries. Our producer is Lydia Jean Cott,
Speaker 1: our engineer is Martine Gonzales, and our showrunner is Sophie mckibbon.
Speaker 1: Theme music by Luis GERA special thanks to the Pushkin Brass,
Speaker 1: Malcolm Clodwell, Jacob Weisberg, and Mia Lobel. I'm Noah Feldman.
Speaker 1: You can find me on Twitter at Noah R. Feldman.
Speaker 1: I also have a new book out called The Arab Winter,
Speaker 1: A Tragedy. I'd be delighted if you checked it out.
Speaker 1: I write a column from Bloomberg Opinion, which you can
Speaker 1: find at bloomberg dot com slash Feldman. To discover Bloomberg's
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Speaker 1: background