Melissa Harris-Perry: You're listening to The Takeaway. I'm Melissa Harris-Perry. It's been more than a year since the passing of Justice Ruth Bader Ginsburg. The political and cultural icon was the second woman appointed to the Supreme Court, a groundbreaking legal strategist, a powerful advocate for gender equity, and a shero for many. Just three weeks before she passed, Justice Ginsburg finished the manuscript for what would be her final book, Justice, Justice Thou Shalt Pursue: A Life's Work Fighting for a More Perfect Union, which she co-authored with her former law clerk, Professor Amanda Tyler, who teaches at the University of California Berkeley School of Law.
For the book, Justice Ginsburg selected some of her favorite oral arguments, dissents, and speeches, reflecting on her life and work. That includes a lecture she gave in November 2019 at the University of California Berkeley School of Law. After the lecture, she was interviewed by Amanda Tyler about her career and life.
Justice Ruth Bader Ginsburg: I graduated from law school in 1959. There was no Title VII. There was no anti-discrimination in employment law, so employers were upfront about wanting no lady lawyers. Some of the sign-up sheets for interviews that were posted at Columbia said men only. A very few firms were willing to take a chance on a woman.
Melissa Harris-Perry: In the Berkeley interview, she not only reflected on her early years but also on the battles that remain.
Justice Ruth Bader Ginsburg: In the 70s, our mission was to get rid of the explicit gender-based classification. That job was almost completed by the end of the decade. What remained and is hard to get at is unconscious bias.
Melissa Harris-Perry: For more on the Justice's life and legacy, we spoke with her Justice, Justice Thou Shalt Pursue co-author, Amanda Tyler. Amanda started by telling me about how this book came to be.
Amanda Tyler: The Justice came to visit the University of California. Initially, she was supposed to come in January of 2019. That was postponed because of her doctor's discovery of lung cancer just a few weeks before her visit, but she intended to come anyway. She persevered and came in October of 2019 when we sat down, and I interviewed her about her life. We were doing it to honor a lifelong friend of hers, a woman named Herma Hill Kay, who had been the first woman dean at Berkeley Law, and with whom Justice Ginsburg had written the very first case book on gender discrimination in the law.
It was really important to Justice Ginsburg to come and honor Herma, who had passed away in 2017. In all events, the Justice came and I interviewed her, and we decided in the wake of that to take the transcript of our interview and build a book around it, filling the book with materials that complemented the stories that she had told about her life in our interview.
Melissa Harris-Perry: Can you say just a few more words about Herma Hill Kay? The very fact that the Justice was so determined to be there at what turns out to be very near to the end of her life does speak to how extraordinary Kay truly was. Yet, I don't know that she's a name, sort of on the lips of folks who are outside of legal education.
Amanda Tyler: Yes, she should be though because she was an extraordinary person in her own right and a trailblazer in her own right. She was one of the first 15 women law professors in the United States. I personally owe a great deal to both the Justice and Herma because they both blazed a trail in the legal academy for women like me to follow and made it so much easier for my generation. The Justice and Herma were the best of friends. I had the great privilege of spending time with them on multiple occasions together. When Herma died, she had actually written a book herself called Paving the Way, which was about all the women law professors who interestingly enough came before her.
She didn't include herself in the list of first American women law professors. Justice Ginsburg had written the introduction to that book. It still hadn't published. When the Justice came to Berkeley in 2019-- A longer version of the story of our book is we decided to do the book, but we went to the University of California Press, and we offered it to them exclusively, conditional upon them also running it with Herma's book, and the press to our great delight went for it. I think that story tells you a lot about both women. Obviously, the Justice was a big deal. Herma was a big deal, too.
What I really love about the story is it tells you or gives you a window into how Justice Ginsburg used her position to lift up the voices of others, and particularly other women. She wanted to make sure that Herma's final work was published. She also wanted to make sure that the stories of the women who had come before them were preserved and were there and accessible for all of us to read. That's a really special thing.
Melissa Harris-Perry: The book then goes on to include documents. I feel like this is a book that so many law school students are going to love. I feel like if I had somebody graduating from law school this year, I would definitely be gifting this text to them because it is both the conversation that you had with the Justice, but also these primary documents from her work as an advocate, as well as in her role on the Supreme Court. Let's just walk through some of them. What are the documents from the advocacy time and why were they chosen?
Amanda Tyler: This part was so much fun to work on with her because we had the idea that maybe we would include the very first brief that she wrote in a gender discrimination case. She was able to find it in her files. It did never been published before. It's a real eye-opener because it lays out in detail what her strategy is going to be as she pursues getting the Supreme Court in the 1970s to recognize that the equal protection clause in the constitution includes and makes promises to eradicate gender discrimination. This is something to give background to the listeners who don't know this. As late as the 1960s, the Supreme Court was saying women's place is in the home.
That's the backdrop against which she starts this magnificent litigation career that completely changes the law in this country and opens up opportunities for women unlike any we've ever experienced. The first brief is a really special brief insofar as like I said, it lays out her strategy. It was also of deep personal importance to her and special to her because she had litigated that case with her husband, Marty Ginsburg. They did it together. It was a tax case. Marty was a great tax lawyer and actually flagged the case to her attention, and she said, "Let's take it," and they ran with it. They won that case in the Tenth Circuit, one of the federal appellate courts.
The government sought to get review in the Supreme Court of that case, but in the meantime, Congress changed the offending law which discriminated against unmarried male caregivers. In the process of seeking review before the Supreme Court, the government made the mistake, the very fatal mistake of attaching a list of every federal statute that made distinctions based on gender. Right there in front of her was a roadmap for all the cases that she would litigate in the decade that followed. It bears highlighting and many people know this, that she often brought cases with male plaintiffs. The idea was to present someone that a bench of nine men could understand and relate to, but also to show that discrimination ran in many different directions.
In the case of Wiesenfeld, the way she was able actually to get Rehnquist's vote was because he realized that there was this infant child who didn't care whether it was his mother or his father who stayed home with them. He just would have wanted a full-time parent either way. That was how Rehnquist was finally able to come around and see how laws that drew distinctions based on gender classifications can really have perverse effects. It's interesting because my understanding is that Rehnquist, for many years, would check in with Justice Ginsburg to ask how the baby, now a grown man, Jason Wiesenfeld, was doing. He really came to appreciate how important the plight of the young child was in the case.
Melissa Harris-Perry: That point that you make here about using or taking up the cases of male plaintiffs in part as a strategic arm in doing this gender work just really highlights how extraordinarily strategic the Justice was at every point as the advocate. Then again, also on the court. I was struck by something that she says to you in the text that she often enjoyed the strategy as much as the position. I thought I wonder if that is part of why that odd fellows friendship existed between her and Scalia.
Amanda Tyler: One thing that a lot of people don't know about Justice Ginsburg is that before she began all of this work on gender equality, she was an expert in procedure. I think that's an important component to understanding her, because she was an expert in how to navigate the court systems and how to think strategically about doing so, because really at the heart of procedure, which I also teach, is strategy, learning and thinking about strategy, how can I navigate the courts to get where I want to go?
I think that very much was a part of her strategy and her approach in the 1970s, because she was in it for the long game. She understood, maybe we will only make progress incrementally. We're going to have to do a bunch of cases to get where we want to go, but we'll get there and we'll get there one case at a time. That's how she went about thinking about it.
Melissa Harris-Perry: Of the four decisions that are her favorite decisions, which are included in the book, only one, the VMI case, is a majority decision. The other three are dissents; Ledbetter v. Goodyear, Shelby v. Holder. Of course, the Hobby Lobby. As you think about the Justice's broad legacy, are you surprised or what should we maybe take from this sense that perhaps even in her own self-understanding, her greatest strength that she most enjoyed was dissenting.
Amanda Tyler: I think that's an unfortunate reality of her time on the Supreme Court, that she wound up being this forceful dissenter to a series of cases in which the Supreme Court really took several wrong turns. I always hesitate to speak for her, but I'm quite confident that she would say she wishes those opinions were majority opinions. She hated to lose. Nobody likes to lose, and especially Justice Ginsburg, she really thought the Court in those three cases had really gone off the rails, and particularly in Shelby County, which is really, really important voting rights case, the ramifications of which we are seeing play out today just as she predicted they would. I think the decision to include the dissents in the book was part of her thinking at the time. You have to realize that we were compiling this book in the spring and summer of 2020 at the end of her life.
I was saying to her, let's include your very favorite opinions. The way I put it to her, I said, let's include the opinions that if somebody reads nothing else, you wrote on the Supreme Court, this is what you want them to read. These were the choices she made. I think the reason was because she wanted people to understand, we still have a lot of work to do. She wanted in particular to highlight three areas where we especially have a lot of work left to do. Gender discrimination, I would lump under that large umbrella of reproductive freedom, which encompasses the Hobby Lobby case, voting rights, and racial discrimination, which is connected to the voting rights issues in Shelby County.
Melissa Harris-Perry: My last question on this goes to your point about when this conversation was happening and how proximate it was to the end of her life. There are those who, even in their adoration and love for Justice Ginsburg, are angry that she did not depart the Court before President Trump took office. What do you think she might say to that?
Amanda Tyler: Up until almost probably the very end she was going full steam and she loved the job, and she felt like she was making a contribution. She said, "Why would I retire?" What I can say in addition from knowing her and watching her, and working with her, honestly, on this book and including the very final speech that we have in the book, it's the final installment in the book before my afterword, is that from that speech, you get a sense of just how deeply and profoundly she loved this country.
Anyone who worked with her, all of her law clerks saw that on a daily basis, her unbelievable work ethic, how important it was to her that every last detail in an opinion be exactly right. I think because of that deep devotion to being a public servant and that love of the work was really hard for her to walk away. She really wanted to give everything she could to this country.
Melissa Harris-Perry: Amanda Tyler is a professor at the University of California Berkeley School of Law, and co-author of Justice, Justice Thou Shalt Pursue: A Life's Work Fighting for a More Perfect Union. Amanda, thank you for joining us.
Amanda Tyler: Thank you so much for having me on.
[00:15:51] [END OF AUDIO]
New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of New York Public Radio’s programming is the audio record.