Amicus With Dahlia Lithwick: "Quiet Words That Remain" – September 24, 2020

Episode Overview

In this special tribute episode of Amicus, host Dahlia Lithwick honors the legacy and jurisprudence of Justice Ruth Bader Ginsburg following her passing. Rather than focusing on the political chaos of the moment, Dahlia and her guests reflect on Justice Ginsburg's legal craft, her overlooked opinions, and her deep commitment to justice for the most vulnerable. The episode features a deep-dive conversation with Professor Gillian Metzger, a former RBG clerk, and moving remembrances from Ginsburg’s law school classmates, Flora Schnall and Judge Carol Brosnahan.

Major Themes and Structure

• Reflection and Reverence Amid Turmoil
  Dahlia opens by setting a somber yet contemplative tone, seeking to separate grief for RBG from the current atmosphere of political outrage and fear.

• Close Readings of Lesser-Known Opinions
  The episode highlights RBG’s nuanced and compassionate work in cases often overshadowed by her more famous decisions.

• Personal Memories and Insights
  With contributions from clerks and peers, the show explores Ginsburg’s unique personality—her meticulousness, humor, and empathy.

• Enduring Messages of Hope and Resilience
  Through memories and advice from RBG’s circle, listeners are encouraged to persist in the work for justice.

Key Discussion Points & Insights

Grieving the Justice — With Care

• Opening Reflections ([00:05])
  • The visual of RBG’s clerks lined on the Supreme Court steps as honorary pallbearers.
  • "In this period of public mourning, the time and space for anyone’s private grief... has just been trampled by the pounding hooves of outrage..." – Dahlia Lithwick
  • Lithwick's mission: to provide space for grief and remembrance outside political rancor.

RBG’s Compassion in Undersung Cases

• Halbert v. Michigan (2005) ([03:05])

  • Ginsburg authored the opinion: indigent defendants who plead guilty must have appointed counsel for appeals.
  • Notable Quote (RBG): "The typical defendant in Halbert’s situation has had little education. Many… suffer learning disabilities or mental impairments..." ([03:29])

• Olmstead v. LC (1999) ([03:58])

  • RBG’s opinion mandated that states place those with mental disabilities in community settings when possible.
  • Notable Quote (RBG): "Unnecessary segregation... perpetuates unwarranted assumptions that such persons are unfit for… participating in community life." ([04:23])

Remembering the Person Behind the Legend

• Conversation with Prof. Gillian Metzger ([05:04]–[31:10])

  • Clerks’ Vigil in D.C. ([05:52])

    • Metzger describes the moving experience of standing vigil.
    • "There is something incredibly powerful… about being with this group of other clerks and having this intimate bond..." – Metzger ([06:09])

  • What the Stories Miss: RBG’s Humor and Humanity ([07:53])

    • Metzger reveals Ginsburg's love of a bit of gossip and her subtle sense of humor.
    • "She could... go along with jokes and the occasional impish prank." – Metzger ([07:53])

  • RBG’s Love of Federal Procedure ([10:54])

    • Dahlia and Gillian "geek out" over Ginsburg’s underappreciated procedural opinions.
    • Shady Grove v. Allstate Insurance is highlighted as emblematic of RBG’s impulse to find harmony and avoid unnecessary conflict.
    • Notable Quote (paraphrased): "Why are we reading the federal rule to conflict with New York’s law? Let’s avoid conflicts if we can do so." – Metzger ([11:51])

  • Pragmatism and Empathy in Jurisprudence

    • NFIB v. Sebelius (Affordable Care Act case) ([17:32])
      • Ginsburg’s opinion integrated a realistic understanding of real-world conditions—healthcare is fundamentally different from other commodities.
      • Metzger: "She always was focused on what do things mean in reality..." ([17:32])
      • Broccoli analogy: Ginsburg dismisses claims that health insurance mandates are comparable to forcing people to buy broccoli ([17:32]).

  • How Did RBG Empathize So Deeply? ([23:49])

    • Dahlia ponders how someone from a privileged, cloistered life could so imaginatively and empathetically place herself in others’ shoes.
    • Metzger attributes it to her exposure early in life, her mother’s experience, and most of all, her advocacy work—listening deeply and translating stories into law.

  • Gender and Equality—Not Zero-Sum ([25:47])

    • Classic Ginsburg lines from early oral arguments: "We’re not in a pedestal, we’re in a cage." ([26:26])
    • Her strategy to use male plaintiffs wasn’t a mere trick—it reflected deep belief that stereotypes restricted everyone.
    • Metzger: "Everyone is denied their ability to realize their full potential and constrained in some way… both are harmed." ([28:30])

  • Advice for the Bereaved

    • Protest and persistence: "Vote as a first step, please. That one has to be hammered, hammered, hammered." – Metzger ([29:48])
    • Ginsburg’s legacy demands continued struggle—“She’d be quite annoyed… if we threw up our hands and thought nothing can go further.” ([29:48])

Remembrances from Law School Classmates

• Judge Carol Brosnahan and Flora Schnall ([32:05])
  • Both reflect on RBG as an icon, steadfast friend, and a witness to the doors she opened.
  • Brosnahan: "She changed everything, I think, and she changed everything for the better. And that’s what is so distressing about what’s happening right now." ([34:02])
  • Emphasis on persistence and resilience, passing the torch to the next generation—handwriting letters, taking action:
    • "Do not go gently into this good night. So she did not go gently into this good night, nor will I." – Brosnahan ([37:10])

Notable Quotes & Timestamps

• Dahlia Lithwick [00:05]
  "The image of them standing there is stunning. In this period of public mourning, the time and space for anyone’s private grief... has just been trampled by the pounding hooves of outrage and whiplash, quick reversal and legitimate fear for what comes next."

• Justice Ginsburg (Halbert v. Michigan) [03:29]
  "The typical defendant in Halbert’s situation has had little education. Many... suffer learning disabilities or mental impairments."

• Justice Ginsburg (Olmstead v. LC) [04:23]
  "Unnecessary segregation of persons with mental disabilities perpetuates unwarranted assumptions that such persons are unfit for... participating in community life."

• Prof. Gillian Metzger [07:53]
  "She did have a sense of humor, and she was willing to go along with jokes and the occasional impish prank."

• Prof. Gillian Metzger [11:51]
  "Why are we reading the federal rule to conflict with New York’s law? Let’s avoid conflicts if we can do so."

• Prof. Gillian Metzger [17:32]
  "She always was focused on what do things mean in reality."

• Judge Carol Brosnahan [37:10]
  "Do not go gently into this good night. So she did not go gently into this good night, nor will I."

Key Segments & Timestamps

| Timestamp | Segment | |-----------|---------| | 00:05 | Opening reflection and the context of the national mood after RBG’s passing | | 03:05 | Halbert v. Michigan (undervalued opinion on indigent defendants’ rights) | | 03:58 | Olmstead v. LC (rights of persons with mental disabilities) | | 05:04 | Introduction of Prof. Gillian Metzger, former RBG clerk | | 07:53 | Personal recollections: RBG’s humor, seriousness, and humanity | | 10:54 | RBG’s love of federal procedural law and the Shady Grove case | | 17:32 | NFIB v. Sebelius and the pragmatic RBG approach | | 25:47 | Ginsburg’s gender equality advocacy and the universal harm of stereotypes | | 29:48 | Advice for those grieving RBG & the importance of voting | | 32:05 | Reflections from RBG’s law school classmates, Judge Carol Brosnahan and Flora Schnall | | 37:10 | Concluding messages of resilience and action |

Tone and Takeaways

• Measured, affectionate, and deeply respectful, with moments of warmth and gentle humor.
• Profound admiration for RBG's intellect and empathy, especially in ways that mainstream remembrances have missed.
• A call for ongoing action: to honor Ginsburg by persisting in the fight for equality and justice—voting, organizing, and not quitting, even in dark times.

For Listeners New to the Episode

This episode offers a rich, intimate portrait of Ruth Bader Ginsburg—not just as a feminist icon or dissenter, but as a meticulous craftsman of law, a subtle and deeply human advocate, and a source of inspiration for generations. With vivid first-person stories and close readings of her work, the discussion provides both solace and motivation for the challenging times ahead.