Justice Ruth Bader Ginsburg: Her Life and Legacy, and the Path Ahead
RUTH BADER GINSBURG: What's the difference between a bookkeeper in the garment district and a Supreme Court justice? One generation. My own life bears witness the opportunities open to my mother and those open to me.
RUTH BADER GINSBURG: In my lifetime, I expect to see three, four perhaps even more women on the High Court bench. Women not shaped from the same mold but of different complexions.
RUTH BADER GINSBURG: I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.
RUTH BADER GINSBURG: Most active female discrimination once dressed up as discrimination favoring the woman. The point is that the discriminatory line almost inevitably hurts women.
UNIDENTIFIED PERSON #1: Well, my question is if this were purely a (unintelligible) male discrimination, would you have a strong constitutional argument.
RUTH BADER GINSBURG: My argument would be the same because I don't know of any purely anti-male discrimination.
RUTH BADER GINSBURG: We have changed your idea about marriage. It's the point that I made earlier. Marriage today is not what it was under the common law tradition, under the civil law. Marriage was a relationship with the dominant male to a subordinate female. Would that be a choice that the state should be allowed to have?
UNIDENTIFIED PERSON #2: No.
RUTH BADER GINSBURG: Cling to marriage the way it once was.
RUTH BADER GINSBURG: It affects every area of life. And so you would be really diminishing what the state has said is marriage. You are saying no state, there are two kinds of marriages - the full marriage and then this sort of skim milk marriage.
RUTH BADER GINSBURG: When if a thoughtless or unkind word is spoken, best to note reacting in anger or annoyance will not advance one's ability to persuade.
RUTH BADER GINSBURG: I am ever hopeful that if the court has a blind spot today its eyes will be open tomorrow.
RUTH BADER GINSBURG: True. We have not reached nirvana. But the progress I have seen in my lifetime makes me optimistic for the future.
TANZINA VEGA: This is The Takeaway. I'm Tansey Vega, and that of course, was the voice of Justice Ruth Bader Ginsburg who died on Friday at age 87. She was the second woman ever appointed to the High Court, a groundbreaking legal mastermind, a fierce proponent of equal rights for women and a hero to many. And Ginsburg was well aware of what her loss would mean for the U.S. at a time like this. In her final days, Ginsburg dictated a note to her granddaughter saying, quote, "my most fervent wish is that I will not be replaced until a new president is installed." This week, we'll take time to look at Justice Ginsburg's legacy and the impact of her legal work and what the political consequences of her departure from the court will mean for the future of this country in the short and long term. And we start today with Linda Greenhouse from Yale University who writes about the Supreme Court and the law for the New York Times and penned the obituary for Ginsburg. Linda, thanks for joining us on The Takeaway.
LINDA GREENHOUSE: Thanks for having me. That was a great set of audio clips that you played at the top.
TANZINA VEGA: And you, Linda, you've known Justice Ginsburg for many years. So before we even go into some of those decisions and professional accomplishments, who was Ruth Bader Ginsburg as a person?
LINDA GREENHOUSE: I did know her for a long time. I met her before she went on the court. I am looking at a framed picture and a little note that she sent back in 2003. She organized musicals at the court. You know, she was an opera lover and a lover of all classical music. And so every spring just on the verge of the court's final push, she would get, you know, Denyce Graves. She would get fabulous musical stars to come in to perform for the justices. And she would invite the press corps. So she sent me a framed picture of her and me at the musical with a little note that said wishing you stamina for tomorrow. Tomorrow, I guess it was going to be the court's final push. So, you know, she was a person of great generosity. She was very grounded, interested in the world. She had a great sense of humor. This didn't come across necessarily to the public. I remember there was a poll taken of lawyers. You know, who is the funniest justice? And they always said Scalia. And who's the least funny justice? And they always said Ginsburg. That's because when she was on the bench, she was dead serious. She was incredibly well-prepared. Asked the toughest questions, often asked questions early in the argument that would set the argument on its track. So she wasn't a lot of laughs in the courtroom but she did have a wicked sense of humor, a lot of shit. She did things that people wouldn't expect looking at this tiny little woman who always looks so frail although she was tough of nails. She went skydiving with her grandchildren when she was in her 70s. She rode horses as she was approaching 80. So she lived life to the fullest really. And, you know, her long life transcended so many eras in the role of women in the world, you know, top of her class at law school, couldn't get a job. That kind of thing. And then to be one of three women sitting on the Supreme Court. So it's an amazing trajectory of a life.
TANZINA VEGA: We played to a number of clips as you mentioned at the top of the segment, and many of that as you well know, Linda, was Justice Ginsburg essentially creating this long-term legal strategy that spanned over many decades, many cases to build towards gender equality. How would you describe her overall strategy, that arc that she basically put together case by case by case?
LINDA GREENHOUSE: Well, that's right. I mean, that's why she was often even in her early days on the bench or referred to as the Thurgood Marshall of sex equality. Justice Thurgood Marshall in his great litigating campaign for racial equality for the NAACP Legal Defense Fund would serve up one case at a time with a long strategic view as to how far the court was going to be willing to go at any moment. So there was the young Ruth Ginsburg in her thirties facing a court of nine men, a court in which a woman had never sat. She had a project. Her project was to have the law, have the constitution recognize equality of the sexes, which the Supreme Court had never acknowledged. The liberal court under the great Chief Justice Earl Warren that brought us to at least some measure, some starting point of racial equality in the 1950s never bothered to interpret the 14th Amendment's Equal Protection Clause as having anything to do with sex discrimination. Nothing. So she really had a job cut out for her. And she did it as I'm sure your listeners know by now. She did it by finding male plaintiffs to make the case that laws that distinguish irrationally between men and women, laws that are based on stereotyped assumptions about women's work and men's work, women's role in society, men's role in society disadvantaged both sexes and should cause the court to think hard about the meaning of equal protection within the constitutional frame. And so she gave the court case after case that didn't seem very consequential and wouldn't get these nine guys upset. And by the end of that litigation campaign, on the verge of herself becoming a federal judge, she had made the court partner with her in creating a jurisprudence of sex equality.
TANZINA VEGA: It's almost hard to imagine, but Justice Ginsburg was appointed to the Supreme Court by then President Bill Clinton in 1993. I remember this. Some of our listeners may not remember it. They were maybe too young. Some probably do. But remind us, Linda, what the context was politically surrounding her appointment and why Clinton ultimately chose her.
LINDA GREENHOUSE: Well, she was a judge on the D.C. Circuit, the U.S. Court of Appeals for the District of Columbia, which is usually regarded as the second most important court in the country. She was prominent. She had a lot of fans. And so when the vacancy occurred early in the Clinton administration, he was urged by many people to apply her. He was a little reluctant. She had alarmed some leading feminists by criticizing Roe against Wade, the abortion case, not criticizing the right to abortion by any means. But she had criticism of the jurisprudence of the case and that it caused some feminist groups to kind of get cold feet. And so President Clinton is quoted as having said when her name arose, yeah, but the women don't like her. But actually a lot of women loved her. And by the end, I think it's safe to say all women loved her. Her nomination was not controversial. We're talking about a simpler age. She was confirmed. I think the vote was 97 to 3. She was asked about abortion. And unlike a number of recent nominees that we can think of, she answered candidly that she was fully supportive of the right to abortion, that was a crucial right for women in planning the course of their lives to be able to control their reproductive lives. And she was confirmed nonetheless. And that was - that's the context. That's the story there.
TANZINA VEGA: Linda, we're going to have to turn to politics, of course. And there has been a fight that's already started since the death of Justice Ginsburg. One of the things that I recall Republicans refused to hold a hearing on Merrick Garland who is Obama's Supreme Court pick then because they said that the Senate should not fill a Supreme Court seat before a new administration. It's becoming increasingly clear, Linda, that the Republicans at least so far seem that they are not going to follow that same principle this time around. How do you see that playing out?
LINDA GREENHOUSE: I see it as the rank hypocrisy that it obviously is. So the Democrats need to pick off for Republicans as I understand the numbers game. And you know, I'm not sure. I'm not sure where that stands because we have Senator Collins and Senator Murkowski saying they don't want to see a vote before Election Day. Of course, that raises the question of what about a vote in the lame duck session. So this is a very complicated dynamic. And, you know, I was just thinking to myself. I mean, the president said he's going to name a woman to replace Justice Ginsburg. And you know, if I were such a woman, I might say, you know, I have too much respect for her legacy. And I'm not going to be used for this purpose. So see you around.
TANZINA VEGA: In one of the remarks that we heard at the very top of the segment, Justice Ginsburg says that, and I'm paraphrasing here, but that she would like to see multiple women appointed to the Supreme Court. And that includes women of color, women of a different complexion as she recall, as she says that. Now the only woman of color on the Supreme Court is Sonia Sotomayor. There have been calls for a Black woman to be sitting on the Supreme Court. Linda, you've covered the Supreme Court for a very long time. Do you see that even happening?
LINDA GREENHOUSE: Well, I don't see it happening under President Trump who's dozens of federal judicial appointments have been astonishingly white. I have to say. You know, it would certainly happen under a President Biden, I think. I mean, President Obama did a great deal to diversify the federal bench both in terms of gender, race, ethnicity, gay and straight. I mean, he put a number of LGBT people on the federal courts. But I don't see any of that with the current president.
TANZINA VEGA: I mean, as we mentioned also, Justice Ginsburg herself said that she did not want to be replaced until after the election. Democrats are calling on the Senate to delay her replacement. I would imagine there's not a legal justification for delaying her replacement. Is there, Linda?
LINDA GREENHOUSE: Well, you know, there is a difference between law and norms. I should say. I mean, the law doesn't speak to this. The law doesn't tell it. The Constitution doesn't tell us how many seats there should be on the Supreme Court for instance. But in the centuries of American life, we've developed certain norms of behavior. It's never been the case that a Supreme Court vacancy that arises less than two months before the election gets filled. You know, we never - just as we never saw anything like we saw it back in 2016 when Mitch McConnell refused to even give Merrick Garland the hearings. So, you know, law won't save us here. But some attention to norms. And, you know, when I when I've seen images of the crowds that have gathered in front of the Supreme Court spontaneously both the night of her death and subsequently, you know, there's something - there's an energy running in the country about this. In 2016, Democrats famously just didn't mobilize around the then pending Supreme Court vacancy, didn't have the Supreme Court really in their sights. Republicans did. I think Mitch McConnell is quite correct when he says that he credits Trump's victory to his own strategy of keeping that seat open so it would mobilize the base, you know, help us fill this seat. Maybe the political energy has shifted and maybe some of these Republican senators who were up for re-election in states that might be trending a little bit purple will think pretty hard about playing this very, very cynical game that's being engineered for them.
TANZINA VEGA: You know, I'm wondering, too. I mean, it wouldn't even be possible to just in terms of the timing. We know that President Trump has a short list. We've talked about that on our show. He's now indicated that he will nominate a woman to the seat. But there is a process for getting someone on the court as we all witnessed with Brett Kavanaugh. It was a very contentious process. But nonetheless, there was a process. Linda, would it even be possible given the short amount of time before the election to essentially fast track a Supreme Court judge?
LINDA GREENHOUSE: Well, you know, the filibuster is gone. And if the 53 Republican senators just, you know, sheep like follow their leader, you know, anything's possible. and of course, a number of the possible nominees have quite recently been put on federal courts by the Trump administration. So they've been vetted. You know, they've answered Judiciary Committee questions. They've filled out all the forms and, you know, the very recent past. And so I expect that, you know, it's not like starting from a clean slate, who is this person? They know who these people are. So yeah, you know, technically if all the Republicans stay in line, they could do it. They might pay a price, but they could do it.
TANZINA VEGA: That would be definitely changing the ideology of the court for some time to come.
LINDA GREENHOUSE: That's unfolding story.
TANZINA VEGA: We'll be watching. Linda Greenhouse writes about the Supreme Court and the law for the New York Times. Linda, thank you for being with me.
LINDA GREENHOUSE: Thanks for having me.
RUTH BADER GINSBURG: Yes, we're not experiencing the best of times, but there is reason to hope that we will see a better day.
TANZINA VEGA: Ruth Bader Ginsburg's death has elicited strong emotions at every level of American life, so we asked you what does her death mean to you and how will you remember Justice Ginsburg.
DIDI: This is Didi from San Francisco. I'm very sad about the loss of Ruth Bader Ginsburg. She was an amazing, inspiring woman who worked across party lines. And she believed that, we are a different one.
JENNIFER: Hi, this is Jennifer from Scottsdale, Arizona. I plan to carry on RBG's legacy by supporting women in having a voice. I've learned to have one of my own and have put boundaries and stand up for myself. And I plan to lead by example and venture where I can.
UNIDENTIFIED PERSON #3: I'm calling for New Smyrna Beach, Florida. I'm going to remember the notorious RBG as the woman who fought for women's rights and fought for rights for the American people.
SIDNEY ELKIN: This is Sidney Elkin from Moultrie, Georgia. I don't think that many people understand what Ruth Bader Ginsburg meant to those moderate and liberal women between the ages of 30 and probably 45. She showed us that you could do what you needed to and what you believed in but didn't have to be nasty about it.
SUSAN JOHNSON: Susan Johnson from Huntsville, Utah. I'm talking about Ruth Bader Ginsburg, the justice who never lost sight of the fact that her job was to champion the people, the freedoms of the people, the well-being of the people. And she never gave up. Never. She was a tireless advocate and worker for the benefit of all Americans.
JOSHUA COHEN: My name is Joshua Cohen. I'll remember Ruth Bader Ginsburg as a legal and judicial crusader for not only women's rights but human rights in general. Her perseverance changed the course of feminine history and paved the way for the equality of women in America, influencing women all over the world. May she rest in peace.
DEBORAH LOU HOFFMAN: My name is Deborah Lou Hoffman. I live in Forest Ranch, California, just out of Chico. I will honor RBG by wearing a black armband with a D printed on it because I am not only mourning for her but I am mourning for our democracy.
KATHLEEN: Hi, my name's Kathleen, and I'm calling from St. Louis, Missouri. And recently, my children got me a coexist bumper sticker. But I have been somewhat hesitant to put it on my car. But after RBG's death, I decided to quit being a coward and put the coexist bumper sticker on my car because it really matters. And she really mattered. And it's a small gesture. But it's mine.
TANZINA VEGA: Thanks as always for sharing your stories with us. Don't forget you can keep giving us a call at 877-8My-TAKE. That's 877-869-8253. This is The Takeaway.
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