← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
A Conversation about Conversations with RBG
01:05:40
Dahlia Lithwick and Jeff Rosen on Ruth Bader Ginsburg’s jurisprudence—and her character.
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- [00:04]
A
This is Amicus, Slate's podcast about the Supreme Court, the courts, the law, and the rule of law. I'm Dahlia Lithwick. I write about those things, and I'm a senior editor here at Slate. We're working on this week's episode centering on the Ruth Bader Ginsburg shaped hole that has appeared in American life for so many of us. But while we work on that, we wanted to re up a bonus episode that we released last Thanksgiving. This is a conversation I had with National Constitution Center President Jeff Rosen at the National Constitution center in Philadelphia back in November of 2019. It was to mark the release of Jeff's terrific book, Conversations with Ruth Bader Ginsburg. The book's an informal portrait of the justice that he had painted by drawing on his conversations with her, dating back back to the 1990s. My conversation with Jeff was also informal, and it was actually pretty joyful at the time and still very, very comforting now. All right, well, thank you all for coming out. This is kind of a groupie thing wherein Jeff Rosen and Dahlia Lithwick get to see who's the bigger Ruth Bader Ginsburg groupie. And you get to. But that's essentially it's just a pleasure to be here helping Jeff spread word about this really, really beautiful book. And Jeff, I think I want to start at the very beginning and just ask you to describe how you first got to know Ruth Bader Ginsburg.
- [01:56]
B
So it was 1991, and I was a law clerk on the U.S. court of Appeals for the D.C. circuit. And I was in an elevator. I think I was going up and into the elevator steps. This austere, very formidable woman in workout clothes coming from a class called Jazzercise. And Judge Ginsburg, who I hadn't met, had an ability to be incredibly intimidating, even in her workout clothes. And she was completely silent in the elevator. Now, those who don't know her can mistake this silence for, you know, inaccessibility, but it is kind of daunting to have a kind of long elevator ride with the other person saying nothing. So just in an effort to break the ice, and because I couldn't think of anything else to say, I just asked her, what operas have you seen recently? I didn't even know she was an opera fan, but I am, and I couldn't think of anything else to say as it happened. That was the right question to ask because she really loves opera, as do I. And we started talking about the operas we'd seen and the operas we were going to See? And that started this magical, serendipitous, blessed friendship that has lasted for 25 years.
- [03:13]
A
So this book is essentially a collection of conversations that Jeff and the justice have had over the years on a variety of topics. And trust me when I tell you, any one of these topics is something that you really do want to hear. What the justice had to say. But I thought, Jeff, just as a framing question, I would just ask you this. Justice Ginsburg always talks about the advice that her mother gave her as a young girl. And at one level, it sounds kind of trite. At another level, I think it's very deep and actually inherently contradictory. She always says her mother told her two things, always. One, be independent. Two, be a lady. Now, bearing in mind that at the time, be a lady meant don't be independent. It is a life that she has actually crafted in which she has managed to do both. And you and I have had the conversation before about how often the meme of the rapper, gangster, you know, killer crusher, RBG that has emerged toward the end of her career somehow disserves the part of her that is a lady. Very much a lady. And I wonder if you could just as a way of setting the table, Jeff, talk a little bit about. You describe her as a minimalist in the book. You describe her as very small C, conservative. We know that on the D.C. circuit, she agreed with Antonin Scalia and Robert Bork as much as she agreed with anyone. And through the arc of this book, you actually trace that change. So I wonder if you can just take us through the Ruth Bader Ginsburg that was a lady, was very careful, very reserved, still is to the Ruth Bader Ginsburg of today, who, by the way, I have the tote bag.
- [05:20]
B
So do I. Yeah. That's such a great question because it encapsulates both the essence of what makes her such a remarkable model and hero, personally and constitutionally. And you're right that those two injunctions from her mother and the fact that she tells it shows how significant it is to her, might seem to be intention. How can you both be a lady and be independent? I asked her about this during our last interview in July. And I say your mother often told you to be a lady, to be independent. Yes, she said. By that, I gather she meant overcome unproductive emotions like anger and jealousy. Is that right? Yes, she said. That's the advice of the great wisdom traditions. Yes, but it's very hard to achieve in practice. Absolutely. And then I said, so how do you actually do it? And she said, lauren, my wonderful wife has just arrived, so your seat is right there. It's good that you've come just at the right moment, darling, because we're talking about Arpaji's advice from her mother always to be a lady and to be independent. So I said, not at all. So I said, how do you actually achieve it? And she said, because I realized if I don't overcome unproductive emotions, I'll lose precious time for useful work. And it's that extraordinary self mastery that is the advice of the great wisdom traditions of the Bible and the Bhagavad Gita and the Buddhist traditions to set aside your ego so that you can focus on achieving your true path and serving others. And that she lives more successfully than any human being I've ever encountered. And it was in the course of writing this book that I saw it in action. She agreed to do the project. We began to collect the interviews. I sent her the manuscript last January or so. And then, of course, she was ill and I didn't want to disturb her and didn't know what was going to happen. On June 27, 10 minutes after the Supreme Court term ended, I got an email from her saying, I've edited your manuscript and will give it to you on Tuesday. And I was completely stunned both that you would think of such a thing. Literally, the partisan gerrymandering has just been upheld and the census has struck down, and she's focused on her deadline. And I came in, I said, I'm stunned that you did this. How did you find time to do this? Well, I did it in the backs of cars and when I was at the movies and stuff like that. And every single page of the manuscript was marked up in her beautiful penciled script with both commas and typos. And Paul Gollum, my spectacular editor, is here as well, and I would like a round of applause to him because I am grateful to him. And Paul is a really great copy editor. And Lauren read it really carefully, too. But of course, all of us missed typos and stuff that RBG catches because her attention to detail is so much greater than. Than any other human beings. And she would change individual words and in that beautiful pencil, every page is worked up. And just the image I have to share with you and all of you friends of this great lady with all the burdens of the country on her shoulders and with these terrible health challenges that are afflicting her, setting aside her physical pain so that she can focus on all of her work. Obviously, this was Just one small project in the middle of everything that she was doing. And always believing that the work, overcoming your ego, not getting distracted, maintaining the focus because it was so urgently important to continue to spread the light. Her ability to actually achieve that inspires me every single day. And we, Lauren and I talk about it all the time. You know, you wake up and there's the choice, am I going to start surfing, you know, or reading and learning. And I think WWRBG do. And you read and you learn and you write. So it's just a model of how to live. So I think that's what her mother really meant. She was not raised as an observant Jew, although she embraces her Jewish identity. So I don't know that she tied it to the Talmudic tradition. But be independent and be a lady meant don't lose your temper when people are demeaning you with sexist epithets at a time when the epithets were appalling. Never get rattled when judges, male chauvinist judges, are demeaning you with, you know, calling you Ms. Ginsburg. And now we know Harry Blackmun's notes insulting her as well. Never losing your focus. Why? I asked her because I wanted to win my case. So that's it's. And so it applies to men too. Be a gentleman in the sense of be controlled, achieve self mastery as Aristotle talked about it, so that you can achieve true well being by serving others. And that's why I think the two are not intentioned with each other. To be a lady is by definition to be independent because you're free of ego based emotions, you're not. When Justice Scalia is saying things like your opinion cannot be taken seriously, as he did of Justice o'. Connor. Justice Ginsburg stressed, I never responded in kind. You know, I love him, but he drives me crazy. She said. And she. And when people are losing their temper all around you, you don't lose yours. So that's what I think it means personally. Now I'll stop and we can take another beat about how to frame how that played out professionally. But I'm very glad you noted that central part of her character.
- [10:58]
A
My corollary to Jeff's story is that when her nephew, who was her husband Marty's nephew, who wrote the screenplay for the big biopic that came out last year and it took him years to write it, and he called and said, I'd love for you to have a look at this, thinking that she'd give it the Hollywood read, you know, that she'd Just blow through it and a day later, send him notes. And she apparently said to him, same deal. She received it. He'd worked on it for years. And she said, page one, line one. He said this on my podcast. He said it took days to go through her notes because she was absolutely ferocious that he get the story right. And more than anything, she really wanted him to get Marty right, the character of Marty Wright, because as Jeff notes, that was a love story for the ages. And she was. Would not allow him to sort of fudge any of that. But it goes to this, you know, underneath this almost myopic cartoonish precision, there is such a lofty sense of responsibility to get the story right.
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B
Can I tell one more editing story? Lauren and I were married by her in her chambers, and she said, send me the proposed script that you'd like me to read and here are a couple samples that I've used before. So we had it and kind of forgot about it. We had our mind on other things. Her assistant wrote and said, the justice would like your edits by 4pm tomorrow. Once again, we forgot about 3pm the justice is waiting for your script. And this is the middle of the Supreme Court term. She's got other stuff to do. So we sent in the proposed vows and used the language that she had used in previous ceremonies, which ended with, Geoffrey, you may kiss the bride. So we sent it in at 3:30. At about 4:30, the marked up track changes in word come back and she's crossed out, Geoffrey, you may kiss the bride, and replaced it with, Geoffrey and Lauren, you may embrace each other for the first kiss of your marriage. Oh, absolutely. And not only is it an awe, but think about it. Because it's just. She's given the traditional vow scores of times, maybe hundreds of times, but she's so careful and so thoughtful that it suddenly occurred to her to broaden it and to make it egalitarian and to take the time to do this in the middle of it. Everything else is absolutely extraordinary. But it does raise the question of how this great judge, who on the D.C. circuit and when she started off at the Supreme Court, was viewed as a very particularist judge who would definitely pay close attention to word choices and was a judge's judge and a minimalist and was very keen on narrow opinions that wouldn't dramatically disturb legislative choices, became the most galvanizing and crusading advocate of liberalism of our time. And I asked her about it and she insisted, oh, Jeff, I didn't change. The court changed. She said, when Justice o' Connor retired, and Justice Ginsburg, when Justice Stevens retired, becomes the senior Associate Justice. Now, here, Justice Ginsburg stressed, understanding a little bit about the procedure of how the Supreme Court operates is important. When the justices hear cases and then they go around the table and they vote, if the Chief justice is in the majority, if he's one of the five, he can either write the decision himself or. Or assign it to the judge who best reflects his views. If he's in the minority, then the senior Associate justice in the majority can be a shadow chief, and she or he writes the decision or assigns it to the justice who best reflects her views. When Justice Stevens retired, Justice Ginsburg becomes the senior Associate justice, all of a sudden, she thinks her role changes. Far from being the minimalist, always crafting narrow opinions, she thinks it's important for the liberals to speak in one voice. So she starts writing the main dissents. And it was in 2013 that she writes her Shelby county dissent, which inspires the Tumblr blog, the Notorious rbg, which goes viral. And she writes the majority opinions when she has the opportunity to do that. So that's her explanation that it was really just a change in role and in the composition of the Court, not in her, but, Dalia, I have to ask you this because you've thought as deeply about this as I have. Do you buy that explanation, or do you think that she actually did change?
- [15:39]
A
So, you know, it's interesting. Jeff recounts in the book a case that happens when RBG is on the bench alone her whole career. She's one of two, and she was actually pretty scrupulous about saying, you know, gender doesn't matter that much. You know, she and Justice o'. Connor. Jeff talks about this, too. Every single year that the two of them sat together, at some point, an oral advocate would call Justice Ginsburg, Justice o', Connor, and call Justice o' Connor Justice Ginsburg. It happened every single term, so much so that the National Women's Law center had T shirts made for them that said, I'm Sandy, She's Ruth. I'm Ruth, She's Sandy. It was like a joke. But also, I think that in that period, which is sort of the beginning of my watching them, it seemed that she was much less angry, anxious, because she wasn't the only. And she was very aware that she wasn't the only, that the sort of trailblazing had been done by Justice O'. Connor. And then when O'Connor left in 2005 to take care of her ailing husband, which is by the Way, a whole other feminist story, because it was really a thing that the male justices would not have done. She felt. So o' Connor steps down to take care of her husband. And so. And suddenly Justice Ginsburg is the only. Which is a long way of saying that in 2009, when the court argues a case about a little girl in middle school who's been strip searched for contraband ibuprofen, she's apparently running an ibuprofen ring at her middle school. And she's very, very, in really personal, personal way searched by school administrators who do not call her parents and give her no option. And the oral argument in that case, I remember sitting in the room and the oral argument was this kind of waka waka, who's on first. Everybody was making jokes. Justice Scalia was joking about whether they searched from the outside in or the inside out. And Chief Justice Roberts was making jokes. And then poor Justice, Justice Briar, who just. Jeffrey counts all this in the book, cannot help himself but make a bad situation worse. Start saying things about, when I was in high school changing for gym, people would stick things in my underwear. And of course, everybody at this point is doubled over laughing. And Justice Ginsburg, who never loses her cool because her mom is playing in her ears saying, never lose your cool, actually gets very angry. And she sort of tunes up her colleagues from the bench and says, this is nothing like changing for gym class. And she describes how this child was humiliated while the strip search was going on. And then, interestingly, by the way, she gives an interview while the case is pending where she says to Joan Biskupic, I can't believe that I'm the only woman on the bench who thought that was appalling. And if there were more women on the bench, it would not have been like that. And then she said, which is fighting words for rbg. I don't think the men share my sensitivities on this. And by the way, as Jeff also points out, by the time the case comes down, all the judges, with two exceptions, mostly have conformed entirely to her vision of this as an inappropriate statement search. But it was her wielding a kind of soft power, and I had never seen her do it until then. And watching the arc of that story, by the way, as that was happening, suddenly Sotomayor is being, you know, looked at as. As a replacement. It felt as though she kind of kicked into some kind of gear. She was very much, I think, offended by being the only. She was offended by that kind of the way that went down in The Stafford case. And I think she felt as though just gently by chiding her colleagues, she had effectuated a constitutional outcome that was not what looked like was going to happen from oral argument. And I think that to me is when I carbon date how she started to change. And then, you know, as you say, Hobby Lobby comes. She certainly went after Justice Kennedy in the so called partial birth abortion case for what she thought of, you know, as very paternalistic writing. But I think that it wasn't. I think that the almost the axis is wrong. It's not that she changed or the court changed. I think she realized she had a really singular role she could play play. And she was very deft and subtle about playing it initially. And I think as it started to feel comfortable to her, she really, really, you know, by Hobby Lobby and by Gonzalez and you know, the other cases that came along, I think she embraced it.
- [20:48]
B
You know, that's so convincing and that is really a powerful account. And saying that she felt comfortable in the role seems right too. Remember, of course, she was an advocate and she calls herself in the book. She said, you know, back in the days when I was a flaming feminist, I had these goals, but I had to win my case. And that's why she was always so strategic. She chose to represent men who had been disadvantaged by paternalistic laws favoring women. And she always moved incrementally, like Thurgood Marshall and, and her briefs were written in this very particular way, constantly citing precedent because she was just so strategic. But always she's the most important advocate of gender equality of our time and in American history now. So I think that you're right that once she both realized that she had a distinctive role to play and was, as you just said, outraged by the fact that her male colleagues weren't getting it, she could find her voice. And then the writing changes to too the early decisions quote other judges all the time, as Judge Posner said, or as the court said in this case, when they're full of citations and every sentence is footnoted. Suddenly after 2013 or so, she's coming up with these great metaphors like, just because you're not getting wet doesn't mean that you throw away your umbrella. And she writes like a dream. And she writes in a really galvanizing way. And then young women and other citizens are galvanized and responding and start quoting her. So she's just freed up, she's liberated to say what she thinks. And what she thinks is she does not like what's going on. Constitutionally at the court. And I asked her, what are the decisions that you would most like to see overturned? And she didn't miss a beat. It's unusual for a sitting justice to say this, but she said the first on the list would be Citizens United. That was an outrage. And I'm just a stranger. And you can clap on a nonpartisan basis. But there was nothing nonpartisan about her list because the next case was the health care case, which, after all, came out for President Obama. But Justice Ginsburg was outraged by Chief Justice Roberts separate opinion which narrowly construed the commerce clause in ways that she thought would harm government regulation in the future. The next on her list is the Shelby county case, the voting rights case, and the final one is Carhartt. And that was so interesting, too. There was a. I wrote an article around the time that Carr came down saying Justice Kennedy votes with the liberal justices in the marriage equality and abortion cases. And she wrote a letter out of the blue saying you might be right about upholding Roe and Casey, but what about Carhartt and what about Stenberg and what about those paternalistic stereotypes? And she was offended by the notion that these meek women had to be protected from regretting their own choices. And she said, so I think you're right. Finding her voice, feeling comfortable, and then suddenly all the roles come together and you realize what it's like to have the Thurgood Marshall of the women's move. And now we can call Thurgood Marshall the Ruth Bader Ginsburg for, you know, African Americans, because this is just a constitutional hero who found her voice.
- [23:58]
A
So this leads me to one of the things that you explore in the book is. And we forget this because again, this is a time in her history that we've elided. But when she was first tapped for the U.S. supreme Court, the truth of the matter is women's groups did not want her. They were strongly opposed to her. One of the funny codas to this story is that it was Marty Ginsburg working the refs who managed to get and Jeff frozen, by the way, who writes a piece in the New Republic that bounces her to the top of the list. But the women's movement was really, really suspicious of her. And we've forgotten that piece of history. And one of the things that's interesting is not just, again, she didn't change. She actually had a fairly consistent criticism of Roe that she had elucidated at the time that people took very much, I think, amiss. And it continues to be to this day, her Criticism of Roe. So I just want to read to you what she said when Jeff asked her in one of the interviews why Roe was wrong. And then just think about the fact that at one point that was so inflammatory that women didn't want her confirmed. Now it seems that, oh, she might have been on the right track and we failed to catch it. This is what, what she said. At the time of Roe v. Wade, this issue was all over the state legislature. Sometimes the choice people won, sometimes they lost. They were out there organizing and getting political experience. The Supreme Court decision made every law in the country, even the most liberal, unconstitutional, in one fell swoop. The people who prevailed said, how great, we're done. We've got it all. The Supreme Court gave it to us. What happened? Opposition mounted. Instead of fighting in the trenches, state by state, state to retain restrictive abortion laws, there was one clear target to aim at the unelected justices of the Supreme Court. This is a decision that should be made so the argument went by the people's elected representatives and not nine at the time. Old men. So embedded in here, there's a few criticisms, I think, many of which have been borne out by history. One is that the move in opposition to Roe becomes the single mother, most powerful and effective movement in the country, that attacks on the unelected judiciary become salient and organizing. And then her third critique, which is not in this quote, is that she would have always located reproductive rights not in the due process clauses, the privacy clauses, not in the rights that she scoffs at in Rogue between a doctor and a woman, but in the equal protection clauses that women cannot function as economic equals in a society where they can't control their reproductive rights. In many ways, each of those critiques pretty prophetic. But it's amazing that she went from being somebody that the feminist movement at that time in the early 90s, found way too conservative. And now here she is, she seems to have been ahead of her time.
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B
You sum that up so perfectly, and it's a remarkable example. And prophetic is exactly the right word. In that sense. She's like our mutual hero, Justice Ginsburg, and mine, and I bet yours, to Justice Brandeis, who's a judicial prophet. So, just to unpack some of the great stuff that Dalia said, isn't it amazing? At the time, women's groups opposed her. It's impossible to imagine now. And yes, I had just fallen after the luck of meeting her in the elevator. My first job out of clerking was to be the young, highly overconfident legal affairs editor of the New Republic magazine. And there was the Supreme Court seat. And I took it upon myself to make a list ranking the candidates and put her at the top of the list, saying that her criticisms of Roe were prescient and she was as respected by liberals and conservatives. And I noted I'd just gone to a lunch with the law clerks at the US Court of Appeals, and two weeks earlier, Justice Scalia had been there. And he was asked, if you had to be trapped on a desert island for the rest of your life with Mario Cuomo or Larry Tribe, who were the frontrunners for the scene, what would you choose? And without missing a beat, he said, ruth Bader Ginsburg. So I told that story, and I said her nomination would be the most acclaimed since Felix Frank, who turned her down for a clerkship on the grounds that the court wasn't ready for a woman. Now we are. So the role of this piece was that thanks to Marty Ginsburg and I didn't know about this campaign at the time, Daniel Patrick Moynihan was championing Justice Ginsburg's nomination at a time when Edward Kennedy was championing Stephen Breyer from Boston. So Moynihan is talking to Clinton on Air Force One, and Clinton says, who should I appoint? And Moynihan, as he tells me, because I asked him and he wrote about it, had just read the piece, and he said, Ruth Bader Ginsburg. And Clinton said the women are against her. That was Clinton's words. And Moynihan said, you've got to appoint her. And then they were able to fax something comparing her to the Thurgood Marshall of the women's movement. And that brought her over the edge. So she's appointed. The women's groups are against her, both because of Roe and because they think she's too minimalist, too conservative, too cautious, not enough of a crusader. But then think about how prophetic she was. As Dalia said, the claim that Roe inspired a backlash that would energize the pro life side and make complacent the pro choice side in a way that stayed what Justice Ginsburg said was a movement in favor of the liberalization of abortion laws seem right. Roe came, as she predicted, to dominate our Supreme Court confirmation politics in a way that blinded people to other issues, like the future of the administrative state, for example, that have proved just as salient. And then there's the equality rationale. And you have to if many of you are constitutional junkies, all of you are in spirit, because you're Here. But it's so remarkable that for 20 years, the brightest, most brilliant legal minds in America tried to come up with an alternative rationale for Road to Justice Blackmun's privacy metaphor, which was problematic both because the Constitution doesn't explicitly protect reproductive autonomy or privacy in that sense, and also because it was paternalistic, as Justice Ginsburg said, to conceive of abortion as a private choice between women and their mostly male doctors. And after 20 years of thinking the best, the most brilliant minds that could come up with was Justice Ginsburg's claim that it's a violation not just of privacy, but what of women's equality? To impose burdens on women that are not imposed on men, to prevent women and not men from making autonomous decisions about their life courses and careers, and in that sense, to violate the promise of equality enshrined in the Constitution. And when the Court upheld Roe v. Wade in Casey versus Planned Parenthood, it invoked that equality rationale. And now and when. And Justice Ginsburg gave. She doesn't miss a trick. She's a masterful chess player who's thinking all this out. She sent us at the Constitution Center a signed copy of her brief in the Strock case, which was a case from the 1970s where she represented a service woman who was seeking an abortion and was not able to get one because of military regulations. At the time where Justice Ginsburg first articulated the claim that restrictions on abortion, abortion violated quality, the case became moot because the army decided to settle it rather than risk losing. So therefore she never had a chance to litigate it. But 20 years later, she's sending us the brief, and if we listen to her 25 years ago, the rights of abortion would be on much stronger constitutional grounds.
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A
Yeah, well.
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B
That'S Rafe in place first, the front row, my wonderful book agent. And he gave a big. There we go.
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A
While we're talking about women's issues, I think it's worth just jumping to the very end of the book. One of the last conversations you've captured in the book where you ask her about MeToo, and I actually remember being at an event here where you asked her about MeToo, and she was, as ever, quite, quite extraordinary about explaining it as a movement and not a moment and what. What she sort of saw it beginning to. To change and to shift. But there is a moment where you just straight up asked her in one of these very recent interviews, what is your advice to all women about how to sustain the momentum of this movement and make its changes lasting? And this is what she Says, and I just want to quiz you on. Because it's another one of those. She's not hiding the ball at all. She says exactly what she thinks. This is Ruth Bader Ginsburg. I've heard from lawyers about women coming forward with reports of things that happened many years ago. Even though the statute of limitations is long past, these cases are being settled. One interesting question is whether we will see an end to the confidentiality point pledge. Women who complained and brought suit were offered settlements in which they would agree that they would never disclose what they had complained about. I hope those agreements will not be enforced by the courts. So that's Ruth Bader Ginsburg just blowing up the NDAs and all of the of the requirements that have really, I think, been used by powerful men to suppress MeToo stories. And I Were you shocked that she just straight up said it?
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B
It's extraordinarily striking. She's completely ahead of the curve, as usual. She understands the most technical issues far better than any of the rest of us. Since realizing the significance of that statement, I just have begun to look into this and I gather there is an argument that non disclosure agreements made under duress, where both parties don't have equal bargaining power, could be unconscionable and unforceable. But it's a completely cutting edge legal issue and she had, she boldly jumped right into it and said how she thinks that it will come out. It was remarkable. What else did you make of her? There's a lot about MeToo in the book and there's this incredible dramatic encounter between her and Margaret Atwood. So when I told Justice Ginsburg that I wanted to collect our conversations as a book, she agreed to support the project. And then she invited Lauren and me to spend the weekend with her at the Glimmer glass Opera in 2018. You can imagine that this was nirvana for both of us, the combination of RBG and opera. And the opera was great and, well, at least west side Story was great. And then we went to see Margaret Atwood, who was giving a lecture on the three phases of feminism. And me too. And Margaret Atwood said that there had been three phases of feminism and that this last one, the MeToo one, she feared, would provoke a backlash and that its changes would not be lasting. And Justice Ginsburg says, I think they will be because there's a critical mass. There are so many women in the workplace that we won't go back to the way we did. And then they both discussed their joint commission concern for due process, concerns for the Accused as well as the accuser. Margaret Atwood had gotten into some controversy for having said that that was important. And in the book, Justice Ginsburg criticizes the college codes that don't have due process for the accused as well as the accuser because she's a civil libertarian at her core. Ever since she studied civil liberties during the McCarthy era at Cornell, which really shaped her conception of the. The importance of due process. She thinks that fairness for both sides is crucial. And she actually proposes in the book impartial arbitration proceedings where universities would put these cases out to outside arbitrators who would have full due process. So it was just remarkably complex and it was so her tremendous support for the movement, confidence that it would last, belief that there remained work to be done, including including rooting out unconscious bias, which would continue to lead to discrimination against women. But shared concern for the accused as well as the accused. What did you make of all that?
- [36:30]
A
Yeah, I mean, leave it to Margaret Atwood and Ruth Bader Ginsburg to be sort of at the absolute zenith of woke feminism and also both to be worried about the rights of, of the accuser. I mean, it's an astonishing. Neither of them are sort of believe all women fundamentalists. They are both so complicated. And I think it's such a useful lesson, both of them coming at it from radically different places to arrive at this moment where they both worry profoundly about the accuser. And I think it's fascinating at the same time, every time Justice Ginsburg talks about abortion in your various conversations, her solicitude is always for the poor women and for the women who will not be able to pack up a suitcase and fly to Paris and go to a spa and terminate a pregnancy. And it's interesting because I think she has such a deep concern for women who are disempowered in a way that maps onto so much of Atwood's writing and so much of the Handmaid's Tale. So it is really interesting to me that they're both again, talking on two axes. You know, they're certainly talking about this MeToo moment and the backlash it may or may not produce, but they're also talking about power systems that are self reinforcing and the ways in which we have to pay attention to that at all costs. I mean, time and time again she says there's never going to be a moment in America where wealthy women will not be able to get abortion. And again, when you think back to the critiques of her that feminists were making in the 80s and 90s where they said, you know, she's functionally just a lady who lunches. You know, she just speaks for rich privilege lawyers. She has no under I mean, that was the critique of her, that she wasn't they wouldn't have used the word at the time, but she wasn't intersectional. They thought she was ridiculously privileged and out of touch. And yet here she is at the other end of her career. She seems to be the person who is most, I think, vociferously articulating the proposition that we have two tiers of reproductive justice and this country. And why is she the person who has to keep saying it?
- [39:00]
B
I'm learning so much from you on this, and I want to ask where that where you think that came from in her biography. And just to reinforce, whenever I asked her about Roe, she would always say it will make first of all, she says repeatedly, I'm skeptically hopeful that it will not be overturned as long as the balance of the court remains as it is now with Chief Justice Roberts in the middle. But she said even if it were, rich women would still be able to get abortions just as they are now. There'd be no remember what happens, everyone, if Roe is overturned. It's not like abortion becomes suddenly legal or illegal everywhere. It just goes back to the states, either to restrict it or allow it as they please. So in blue states, protections remain unchanged and perhaps even expanded. In red states, there already are almost no abortion clause clinics, and it's extremely hard for poor women to get abortions now. And if Roe were overturned and it were banned in those states, it would be even harder for poor women to leave the state and go to a clinic where they could get an abortion, women of means would still be able to do so. So that's why she's so focused on that. And my question to you is it's not from her upbringing and it's obviously not generational because not all women feel that. Where did that come from?
- [40:15]
A
It's a great question. And I the last, you know, the big, big biography of Justice Ginsburg doesn't fully answer that question. I mean, this is a child who grows up in tremendous privilege, you know, has every opportunity, goes to great schools. Her, you know, in the manner of Jewish mothers everywhere, her mother thinks she walks on water. You know, she really does. Does, I think, have every opportunity beyond anyone could have conceived of in her generation. And, you know, doors are essentially flung open, you know, at Harvard and at Columbia. I mean, even though she faced unbelievable discrimination based on gender in another sense, she had every opportunity. And so Jeff's question, I think, is really the most apt question, which is, how does she come to have such an absolutely capacious understanding for and empathy for people who are not privileged? And that cuts through all her jurisprudence. That's Shelby County. That's. I mean, her awareness of a world that I think perfectly, frankly, because she's been on the federal bench for so much of her life, that these are not people she's bumping into, like at the Walmart in El Paso. So yet how is that possible? And I think that the root of the. For me, Jeff, the book answers it in a way that I hadn't thought about until I read it, which is listening to her. And I remember when you interviewed her here, when she talks about Sharon Frontiero, when she talks about these clients that she had in this 70s, and immediately she's telling you the entirety of their biography. She is so absolutely enmeshed in their lives, their jobs, their struggles. She makes a point of telling Jeff in the book, you know, these aren't clients that we cherry picked for the purposes of litigation. These were people who were working people who were struggling with horrific discrimination in whatever context they were.
- [42:23]
B
And.
- [42:23]
A
And she remembers this encyclopedic account of their lives, and it answers for me this question, which is, I think, her empathy, which is hard to square with the affect of somebody who seems at this point to just be a brain in a vat and who is not, like, deeply emotional and never loses it, and the emotional bandwidth is about this much. And yet her capacious empathy with people who are not like her, I think is a signal quality she's carried through her life, and it makes her very different. You know, when you want to accuse justices of being elitist and out of touch, I think her capacity to deeply, deeply empathize with lives that are not like hers, to imagine imagine herself into someone else's shoes. And it, in some ways, I think, is bookended by the entire beginning of her career. She has to talk to panels of all white male judges and try to persuade them that even though they think she's super lucky to be taken care of and to not have to worry her pretty little head about jury duty or Social Security or. Or money. And she has to say to them, okay, start from the proposition that I am the luckiest, most pampered girl in the world, but. And then she. Jujitsu is largely by bringing appeals on behalf of men. But I think that in itself was such an act of emotional empathy of Imaginative connection to people who absolutely couldn't understand. But I think that her entire career has been an arc of translating lives that cannot be understood to a judiciary that is by definition, not going to move.
- [44:21]
B
Wow. That is. That is.
- [44:28]
A
I told you, I'm a super fan.
- [44:30]
B
No, you're more than a super. That's the Rosebud. I think you kind of identified this central quality that I hadn't realized was so central to who she is. And that's because it's hiding in plain sight. As you say, this is a woman who was criticized for not having the big heart that, you know, Clinton wanted a big heart and Obama wanted a big heart. And she was considered the judge's judge who was always focusing on the law. But behind that protective particularism was the warmest and most acutely attentive empathy imaginable. So attentive that when she's reciting all the details of those cases, she's living those indignities with those people. She realizes that Stephen Wiesenfeld, who can't get Social Security benefits because the law gives those benefits to widows but not widowers, and therefore he can't be the sole caregiver for his son. She gets to know Steven Wiesenfeld, and she not only wins the case for him, but she stays in touch with him and she performs his second marriage and she marries his son at Columbia, and she's keeping in touch with Sharon Frontiero, who she's going to go see at the 100th anniversary of the 19th amendment. And so my mom passed in January, and Justice Ginsburg was recovering from her cancer surgery, and I saw her for the first time. It was her first outing after the surgery, right after my mom died. A week after my mom died, she'd just come out of her surgery and the first thing she did was pass along a handwritten note expressing sympathy for my mom, which I used as the dedication. Always thinking of others. What a. I remember I told you that I think that her ability to master her ego and unproductive emotions so she can serve others is the embodiment of what the wisdom traditions counsels. That's why she's a model of how to live. She's just constantly thinking of others, paying attention to the small details of others lives, and carefully conserving her energy and precious time so that she can devote every bit of of her time on earth to serving broader ideals and to thoughtfully engaging with other people. And that's the irony of the woman who Marty always used to say, you know, my wife People wrongly think that she's a cold fish. She's not like that at all. And they could think that because, you know, when you first meet her, she did what she did to me in the elevator. She's just silent. She just doesn't say anything. It's sort of like a Martian, you know? And unless you have the good fortune to stumble into the right topic, the $64,000 question, what operas do you like, happen to be the right question. And you wouldn't get. But behind all that is just constant concern for others. What a remarkable model of how to live. And thank you for solving.
- [47:25]
A
Yeah, well, okay, so we have some questions, and I'm going to ask them, and then you can either answer them or spike them. To me, it's the question that I think plagues a lot of otherwise stalwart fans, which is, did she consider stepping down when Obama could have appointed a replacement? And why didn't she? And why are we in this pickle? The word pickle is not in the question.
- [47:53]
B
I'm sure we have a very well behaved audience. So this pretty kettle of fish. I'm sure that some the of. I asked her, you know, whenever it was the time in Obama's second term when people were criticizing her for not retired, and I said, people are criticizing you for not stepping down. Why didn't you step down? And she said, what reason is there to believe that anyone better than I could have gotten through the Senate? And, you know, as it turned out, given what happened a year later, that was not a. Not a crazy prediction. So there we go.
- [48:30]
A
I will add my gloss to that, which is. I think she really watched. I flicked at this initially, but I'll unpack it a little bit. Sandra Day o' Connor essentially got forced off the court. Sandra Day o' Connor goes to Chief Justice Rehnquist, who has thyroid cancer, and says to. To him, I'm going to go in a year to take care of my husband. I will go in a year. You go now. And he says, no, you go now because I'm going to be fine. She leaves a year before she's ready, by the way. By the time she has left, within a few months, her husband has to be hospitalized, and within a short time after that, doesn't recognize her anymore. So she gets kind of pushed off the court. And then, of course, Rehnquist's answer for why we can't both go at the same time is we can't have two vacancies in the same summer. That's unseemly. Which is true. And then he dies almost immediately thereafter. So I think the story as I have heard it, is that she felt that o' Connor was sort of falling on her sword to take. Take care of her husband, but being forced off before it was time. Had a year passed as she had anticipated, she would have made a different choice. She could have been on the court for six, seven more years. And I think that that really affronted her. I think that it's. It was a sort of a feminist rebuke. And I think she took it very, very seriously. And I think she also felt that why is it that all these men have been on this court till they're 92 and 93 and 96 and nobody says he should retire? And so right or wrong, I think she construed it as a gendered attack. And I'm not 100% sure whether that is all legitimate, but I think it was deeply felt. Can I ask you one other question that I really wanted to ask you?
- [50:38]
B
You? Yes. And then I have one question for you and then we can.
- [50:40]
A
All right.
- [50:41]
B
At least one.
- [50:43]
A
There's a gorgeous answer here where I'm just going to read it and I may tear up because it's beautiful, but Jeff asks what it was like for her to perform her first same sex wedding. This is her answer. It's one more example of what I see as the genius of our Constitution. If I asked you the question, who counted among we the people when our Constitution was new? Well, not very many people. Certainly I wouldn't count. Certainly not people who were held in human bondage, not even most men, because you had to be a property owner. So think of what our nation and our Constitution would have become over now. Well, more than two centuries, the idea of we the people has become more and more embracive. People who were once left out, people who were once slaves, women, Native Americans did not count in the beginning. Inclusiveness has come about as a result of constitutional amendments. In the case of the Civil War, three post Civil war amendments, and judicial interpretation. The idea was there from the beginning, equality. And yet you can read every page of your pocket constitution and you will not find in the original Constitution the word equal or equality. Even though equality was a main theme of the Declaration of Independence, the word equal becomes a part of the constitution in the 14th amendment. So I see as the genius of our Constitution and of our society how much more embracive we have become than we were at the start. So if you're a con law dork that Just raises all the hairs on your arm like it's such an exquisite articulation of something. That is the answer, I think, to the cartoon versions of living constitutionalism. And my question, you can answer any question you want about that. There's a bit at the end where you ask her about that word embracive. But I think I want to ask you the question she says that makes her an originalist. Jeff. She says this is originalist. And I wondered if you could talk about that for a minute.
- [52:54]
B
Well, first I have to say thanks for reading that quote. And yes, it just. It does bring goosebumps and it does sum up what a liberal vision of the Constitution would look like. That was born at Seneca Falls, where heroes of the women's rights movement wrote a declaration of what women's rights, invoking the Declaration of Independence and insisting that natural rights of liberty, of equal liberty in here, in all human beings. And for her, in that beautiful paragraph where every word is well chosen, to have talked about how the Constitution has come to slowly embrace not only African Americans and women, but then other excluded groups, all fulfilling the promise of the Declaration. And then to tie that back to the. The founding vision and to view it as a form of originalism is incredibly inspiring. And the word I asked her about is embracive. What a beautiful, distinctive, particular word. And as I said to her, that's your word. That's not Thomas Jefferson or anyone else. Embracive. I said, what did you mean by embracive? She means embracing. Her reply was embracing the left out people, not just grudgingly, but with open arms. Isn't that beautiful? It's just. And that's her vision and it's distinctive. And that's why she's a hero. That's why there are very few Supreme Court justices. There are many good ones, there's some great ones, but there are few who transform the meaning of the Constitution, our understanding of the Constitution. Thurgood Marshall through his advocacy, you know, Brandeis through re envisioning the First Amendment. Justice Ginsburg by envisioning the Constitution as a more embracive document. Was I surprised that she called herself an originalist? I was, because I said, you know, there's originalism and what's the alternative? Because you're not an originalist. And she said, no, I am. But I think the Founders anticipated the Constitution becoming ever more embracive. And it's striking. Justice Kagan, in introducing Justice Scalia, said, we're all originalists now in the sense that Everyone thinks that the text and original understanding matters to some degree. The question is, how do you translate the Constitution in light of changes in society? And Justice Ginsburg's genius is to see that increasing embrace of this stemming from the Founders, his own vision. So that the promise of the Declaration, which is thwarted in the original Constitution, resurrected by Lincoln at Gettysburg and in front of Independence Hall. And you know what we have to do for now, friends, for just a minute, the best part of this building, the reason we're here right now, let us just have the privilege of inspiring ourselves by looking over there. The room where it happened, the room where the Declaration of Independence is drafted, promises that all nation men are created equal. That promise is thwarted in the Constitution. Lincoln stands in front of there in 1861 and says, I've never had a thought politically that didn't stem from the Declaration. And then the promise of the Declaration is codified in the post Civil War amendments, which you can see downstairs. But women are betrayed because the women's hour has not come and the word male is inserted into the 14th Amendment for the first time. But then comes the promise of women's equality. And in 1920, and an anniversary we're going to celebrate all next year, starting in 2020, of women's equality. Yes, we're seeing a lot of enthusiasm about that. Women are granted the right to vote and the Constitution becomes more and more embracive. And Justice Ginsburg's great achievement is both enshrining that promise into the Constitution and her Virginia Military Institute opinion, and also in challenging us to remember that the embraced ness of equality remains to be worked out and not all imposed by judges. She remains. She's not a conventional. There's nothing conventional about this genius, this great woman. She doesn't believe that judges should just enforce equality according to what they think that, you know, the philosophy requires. She thinks it's ultimately up to us. And that's why she's so inspired by young women who are fighting state by state in state legislatures and in the political arena to get a more embracive vision of equality. Because she says, don't rely on judges. I dodged the question about the courts because it's such a big question. But her answer would be, don't rely on the courts. Social change has never come primarily from the courts. The courts can nudge or put on small breaks, or they can codify new understandings of equality after they've been embraced by society, as in the marriage equality decision or even in Brown v. Board of Education. But Judges cannot lead. And that's another remarkable thing about her. This great leader who had this heroic vision of equality as an advocate, is so conscious of her role as a judge, becomes more comfortable because of her newfound voice and because of her empathy, but still never mistakes it to be primarily the role of the courts to fight for equality. She thinks that's the role of all of us.
- [58:16]
A
Yep.
- [58:17]
B
Yes. I'm going to take the I've learned so much from you, and I'm going to ask you the last question, which is a version of the, you know, what do you think her legacy is? But in particular, and among other things, how does she fit into the fights for women's equality? Have women and has feminism caught up to her vision of equal treatment? Or, you know, has it moved on to another vision? Was she a prophet in insisting on that kind of equal treatment? Or is she just embraced by young women now because they think that. That she's such a boss but don't actually share her vision of equality? And when you put her in the context of the greatest advocates for women's equality of our time, and there are a handful of great heroes for every great constitutional movement, how would you sum up her constitutional legacy?
- [59:10]
A
Yeah, I think it's a great question. And I think in a complicated way, she's both too early and too late. In much the same way, when we talked about her vision of reproductive freedom that we are only just catching up to, although for a long time she was ahead of her time. And I think in a profound way, she has said when I've interviewed her that she worries that young women, the kids, don't have any understanding of what life was like, what her life was like, what even life was like pre Roe, that we've become so Harold Bloom's word for it is belated that we can't even imagine a time where there will be no abortion. And I think she worries about those things that we have somehow. And she talks about it a little bit in that quote about winning Roe that, you know, we spike the football, we say it's over, and no one believes we can ever go back. And I think she's anxious about that. I also think there's a through line in her thinking. It emerges so strongly in the book where she authentically believed that the marriage she and Marty had, where, you know, he did the cooking and she did the writing and he picked up the kids from school and she did the writing and, you know, he went to the meeting when the kids were bad and she did the writing you know, like, he. I think there's a lovely quote from Jane, her daughter, in the book where Jane says, you know, my dad cooks and my mother does the thinking, right? And that was. That's how she thought all of our marriages were going to look like that. You know, by 1979, we were all going to be in that marriage. And clearly that's not what happens. And, you know, when I've spoken to her about this, I think she still feels that the keystone here is going to be this kind of small, granular domestic equality that she thought, you know, and she posits it in different ways in terms of, you know, time off work and maternity leave. I mean, she has programmatic definitions of it, but I think she genuinely believed that we as a society, society would be much more equal in that sense that, you know, that lofty constitutional sense, but also in the guys, change the toilet paper role, it's not hard. And, you know, we're still not there. And so I think that there's a way in which she's always a bit shocked that. That, you know, like when you watch the Jetsons and you're like, wait, we're not, you know, you know, flying around in the air. I think she's shocked that there's still such a massive disparity in just, you know, work organization and domestic organization. And, you know, she talks about how is it possible that there's parody in law schools and yet women are still not, you know, partners at law firms. So I think that's the part that shocks her. And it's funny because. Because it always circles back to. I think she just really believed that we would come further than we are at that silly domestic level. And I remember thanking her profoundly because I have said on more than one occasion, she raised my children because when my kids, preschool teachers would call every single time they were badly behaved. And I could quote Justice Ginsburg, who, when her son was badly behaved, and they constantly called her never Marty. And at one point, she sort of very, very angrily said, the child has a father. And I actually said that to my son's preschool teacher. You know, I don't have to be the only person you call, but I think that even, you know, that happened with such a massive timestamp differential, and yet still the world hasn't changed. And even now, I think more so than even she would have said five years ago that the space in which women are allowed to exist and thrive publicly is contracting in front of our noses. And so I think in that sense, again, she was both a prophet but also kind of a disappointed prophet that we haven't done the work of organizing ourselves according to this, in her view, just crystalline obvious definition of what equality would look like.
- [63:50]
B
Wow. Well, I guess it's up to me, as the host, to say, first of all, thank you Dalia, for taking the time to come here and for teaching. I need to finish the the thanks, which is for teaching me as much about RBG as I could possibly hope for. And let her shining spirit, which you so beautifully identified, of disciplined empathy, inspire all of us to be better people and better students of the Constitution. Thanks for coming and thank you so much. Thank you.
- [64:32]
A
That was me with Jeffrey Rosen, National Constitution Center President and host of the podcast we the People in a Conversation that we recorded in November of 2019 in front of a live audience at the National Constitution Center. The National Constitution center has another podcast, Live in America's Town hall, which shares the live constitutional conversations hosted by the ncc. Today's show was produced by Sarah Burningham, with thanks to Jeffrey Rose and Jackie McDermott and the National Constitution Center. Gabriel Roth is Editorial director, Alicia Montgomery is Executive producer, and June Thomas is Senior Managing Producer of Slate Podcasts. Thank you so much for listening. If you'd like to get in touch, our email is amicuslate.com and you can find us at facebook. Com amicus podcast we'll be back with a new episode of Amicus later this week.