A 2016 portrait of Associate Justice Ruth Bader Ginsburg by artist Constance P. Beaty is displayed in the Great Hall following a private ceremony for her in Washington, Wednesday, Sept. 23, 2020.
( Andrew Harnik/AP Photos
Tanzina Vega: You're listening to The Takeaway. I'm Tanzina Vega. Justice Ruth Bader Ginsburg lies in repose today and tomorrow at the US Supreme Court building. On Friday, she will lie in state at the US Capitol. She's the first woman ever to be given this honor. All this week, we've been looking back at the life and legacy of Justice Ginsburg, and we'll continue that today. In 1993, when President Bill Clinton nominated Justice Ginsburg to the Supreme Court, he referred to her as, "The Thurgood Marshall of gender equality law." Ginsburg herself sometimes pushed back on the comparison to Marshall and his trailblazing civil rights work,
Justice Ginsburg: I'll take this opportunity to say, I don't like the comparison of me to Thurgood Marshall, because my life was never in danger. His was. He went to his Southern town in the morning, he couldn't be sure he'd be alive at the end of the day. I never had that kind of threat.
Tanzina: That was Justice Ginsburg speaking in 2018. While much of Ginsburg's legal work indicated clear understandings of racial discrimination, some critics have called out some of her more personal shortcomings when it came to race. For example, like most of her male colleagues on the bench, she hired few law clerks who were Black or people of color. Joining me now is Fatima Goss Graves, president of the National Women's Law Center. Fatima, thanks for being with me.
Fatima Goss Graves: Glad to be with you.
Tanzina: How did racial equality factor into some of Justice Ginsburg's early legal work?
Fatima: One of the things that I think few people know is when she was at the ACLU Women's Rights Project, she actually filed a really important brief in the court in a case involving whether or not there should be the death penalty for rape. She really used that case and that grief to highlight both the race tropes around sexual violence for Black men, and also the way in which notions of purity that have been attached to white women, that they actually are harmful to white women and to everyone.
One of the things that I think may seem more quiet and subtle about her work is that she got pretty clearly the idea that we were all harmed by discrimination. We were all harmed by whatever form it took, whether it's racism, sexism, disability discrimination, that is through lined throughout her work.
Tanzina: Yesterday on the show-- Well, we've been unpacking her legacy all week this week, and yesterday, we talked a little bit about how she became a pop culture icon in a lot of ways. Some of that was really because of her dissent in the 2013 Shelby County case, which effectively dismantled key parts of the Voting Rights Act. Why do you think, Fatima, that that dissent struck such a chord?
Fatima: The dissent was important for a couple of reasons; it was important because of the terms that she used to highlight the absurdity of the majority's opinion. The absurdity of making it so the Voting Rights Act lost its teeth. She was funny, in that opinion, she used analogies and said, "If it is raining and you are dry because you have an umbrella, now is not the time to take away your umbrella, it is still raining."
I actually think one of the things that is very relatable about her opinions is that she goes back to the reality of people's lives, the way things work in the real world. For that, I think people thought, "Wow, she's standing up for everyone." The cultural work continued forward.
Tanzina: There have been some critiques and, of course, no one is able to get away without having a record critique, particularly if you're a Supreme Court justice, that comes with the territory. I wonder, Fatima, if you can tell us a little bit about how we should be looking at the standards, I think, that many, "Progressive icons," are held to. Some folks have criticized her for not hiring enough Black law clerks, for example.
She, in 2016, called Colin Kaepernick decision to take a knee, "Dumb," which she later apologized for. Were these human error or missteps, or were they part of a larger impossible standard that a lot of our progressive icons are held to?
Fatima: I think it's important to separate the Kaepernick from the hiring because, I think, she apologized once she learned more and that was important. Once she understood what the protest was about and why it was happening, she basically said, "I shouldn't have commented, I didn't know enough, my apologies there." On the hiring front, that is a thing that I think we have to explore and talk about.
The Supreme Court bar is a bar that remains still in 2020, mostly white, mostly male, and this elite echelons of the legal profession clerkships being one of them, there are very few people of color that do clerk, let alone Black people who do clerk. 20 years ago, when I worked in the Seventh Circuit, I was one of two Black clerks on the whole court at that time, and you would think that it had gotten dramatically better.
That is not the case. Some of that deals with the diversity of people who are in those roles but some of it deals with breaking up the systems that make it so only a few people even get close to having that opportunity. It's bad for this country.
Tanzina: When we look at how race has played out on the Supreme Court itself, we know that there are only two people of color, one Black sitting judge and one Puerto Rican sitting Supreme Court Justice right now and that is Sonia Sotomayor, at the moment, and she has in many of her opinions, at least directly called out race, including, at one point calling out micro-aggressions in some of her dissents. Will Justice Sotomayor be carrying the mantle further for Justice Ruth Bader Ginsburg, or is she really carving out her own path when it comes to calling out the United States' systemic racial inequities here as a justice of color?
Fatima: I think, Justice Sotomayor's role on the bench highlights why we need a really diverse bench because she raises issues that aren't raised. That is true on race. That is true on gender. That is true, because she can talk about the community she came from, the experiences she's had in her life, but one of the things that she also has done is she has remained connected to community.
When she wrote her book, she had meetings where she talked about her life and her personal story. The Supreme Court shouldn't be in an ivory tower, making decisions and totally disconnected from real people. It gives me great confidence that she's on the court.
Tanzina: Now, there are many calls to have a Black woman as the nominee for the next Supreme Court Justice, Fatima, we've got less than a minute to go, is that even a likelihood if say, Joe Biden wins the presidency?
Fatima: Well, Joe Biden has committed to appointing a Black woman to the Supreme Court. My guess is that will happen if he wins but I just want to add that it is this current process for Justice Ginsburg seat is far, far from done. It is this extraordinary idea that during an election that they would rush this nomination through and I think people are going to rise up and try to stop this current process as well.
Tanzina: We're already seeing some of that in some key Senate races across the country. Fatima Goss Graves is the president of the National Women's Law Center. Thank you so much, Fatima.
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