Remembering RBG

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S1: Dahlia Lithwick has covered the Supreme Court and watched Ruth Bader Ginsburg for a long time now, but it wasn’t until a few years back she realized Ruth Bader Ginsburg was watching her, too.

S2: She said she liked reading me because I was spicy. That was the very first note I got, which was that she she had said, I like reading that girl. She’s spicy.

S3: There are a lot of ways to remember Ruth Bader Ginsburg. Legacy, she was a feminist, a scholar, a jurist. But Dahlia says she was also polite old school. Ginsburg was known for sending these notes out on Supreme Court stationery. She sent one to a little girl who dressed up like her for her school’s superhero day. She sent another to a writer and fan who’d invited RBG to her wedding on a lark.

S2: But it wasn’t just thank you notes, the thing she was most famous for, I think, was like you’d submit your wedding vows. Jeff Rosen tells this story. But so many people tell the story of submitting the draft of their wedding vows at 2:00 in the morning and she’d edit it. Yeah, you get back. Jeff’s version of the story is very funny that, you know, you just are sitting in pro forma like this is what we’ve agreed to do. Will you just read this at 2:00 in the morning? Getting back handwritten like this is a little retrograde. Don’t like this. Maybe rethink this.

S1: Editing someone’s wedding vows for them. It reveals a precision that was trademark.

S2: Ginsburg There was this famous story where when she argued a case at the Supreme Court, Justice Blackman used to write give people letter grades, the oral advocates, when he was on the bench and he wrote C plus when she argued very precise female and like it was that it was not it was not a lottery thing. But I often think that very precise female nails it. Exactly.

S1: Whoa. Have you have are you mourning like do you I know you’re a reporter. You covered Ruth Bader Ginsburg, but. Have you given yourself time to feel sad?

S2: Oh, man, I mean, Friday night, I felt like I’d been really punched in the solar plexus. And that’s ironic in light of the fact that we all knew about her sequence of health scares this year. And so in some sense, I think everyone should have prepared and in a weird way, nobody seems to have been prepared, Deua says after she learned Ginsburg passed away, she just couldn’t sleep.

S1: Then she thought back to the last interview that done how the whole time Ginsburg had been sipping tea out of fine China loudly. You could hear it when you listen back to the recording.

S2: So at 4:00 in the morning, when I couldn’t sleep, I got down my mother’s old collection of really fine China teacups and made myself a cup of tea and just sat there clattering it into the saucer. And that was, I think, as close as I came to really letting myself feel the loss, I think in some sense, because this got so politicized so fast. And I remember Justice Scalia’s death was like this to wear within an hour, you had to move on and put on your gloves because we were going to fight. It’s hard to really sit with the whole in, you know, your heart and your stomach, because already you’re getting kind of conscripted into battle.

S4: Today on the show, remembering Ruth Bader Ginsburg and considering the fight to come. I’m Mary Harris. You’re listening to what next? Stick with us.

S1: So I think a lot of people, especially because we’ve had the whole weekend process, feel like they know Ruth Bader Ginsburg story, that, you know, she became a lawyer when a lot of women didn’t become lawyers and she transferred from Harvard Law to Columbia to follow her husband. But her husband ended up being one of her biggest advocates and really being a key to her arriving at the Supreme Court. She was a founding director of the Women’s Rights Project at the ACLU. There are just like so many threads to pull on. I’m wondering if you could just take one that you can’t stop mulling over. Maybe it’s a case that she litigated. Maybe it’s a case she ruled on that you think in all of this we need to be paying attention to?

S2: It’s funny. One of the things that I always observed was that in some sense she was between generations, right? She was. This really comes out, I think, in the the biopic that she was too old in a weird way for 70s radicalism. And so, I mean, we just forget, you know, she went to law school in the 50s, not in the 60s. And so in the movie, if you think about Daniel Steelman’s movie, you know, on the basis of sex in the movie, what that means is that she’s teaching a law school class and her students are young and they have, you know, like Jan Brady hair and big afros and they’re pushing her. And she’s this very buttoned down, utterly proper New York Jewish lady. And I called her the dorks dork at some point. Yeah. I mean, she just again, I think it goes to her fundamental conservatism that in the 1970s when women were burning their bras were, you know, arguing for the era, were pushing for liberation in a really physical way. RBG was just a brain in a vat. She was dispassionately laying out the architecture for a whole arc of cases that would forever change the way the Constitution treats women.

S1: She could see the horizon. It felt like where it’s like she was just phenomenal at knowing her audience, being a woman lawyer, knowing she was going to argue for women’s rights in front of a bunch of men and thinking through like, how do I make that argument to this particular group of people?

S2: You know, early on she said that she likened what she did when she argued cases before all male panels. She likened it to being a kindergarten teacher and which I always kind of hated because I felt like, hey, that’s not, you know, a very empowered vision of her role as an oral advocate. Like I’m going to explain really slowly to you at the Supreme Court why it is that gender bias affects men as much as women. But she was very always very, very careful to say that that’s what she was doing. She was bringing men along in her early career. And I thought that was really interesting because at the one level, it does seem disempowering. It does seem so beneath what other oral advocates, male oral advocates had to do. But in another sense, it really was the way she approached the world. She always said, like, get the work done, but do it without making enemies, you know, do it without blowing up relationships and seems quaint. Well, it does. But also part of it is just pragmatic, right, if you’re talking to it. Supreme Court. And she argued six cases at the Supreme Court and it’s nine men. You just can’t go in there, like rip off your bra, set it on fire at counsel table and hope for the best. It seems so retrograde, right, that she has to not just talk to them like she’s a kindergarten teacher, but then bring them a male plaintiff because they couldn’t possibly imagine a case that impacted women. But I think that even though it’s quaint, like that was what was kind of radical and genius, Dahlia says.

S5: Understanding the judicial trail Justice Ginsburg blazed, it means going back to one of her very first cases, Morritz versus Commissioner. It never made it to the Supreme Court. It was about tax law for I promise you, the Supreme Court’s performance in tax cases is an exceedingly funny subject. Back in 2010, Justice Ginsburg gave a speech about this case to members of the 10th Circuit Court. The speech itself was a.

S2: Bit of a surprise, it was supposed to be delivered by her husband, her husband, Marty gave was supposed to give a speech the year that he died. He was supposed to give a speech at the 10th Circuit called How I Got My Wife, her very first job. And here it was, the sweetest, sweetest speech. He died that spring, but she went and gave the speech verbatim at the 10th Circuit. I was in the audience and she read it. I mean, people were sobbing because she read it in his voice.

S5: Dry-eyed, you know, perfectly or B.G. Words versus commissioner was a case the Ginsburg’s taken together. Their client was a man who was suing the IRS because he wasn’t able to get a 600 dollar tax deduction for his caregiving expenses for his ailing mother. The tax deduction, it was only available to women.

S2: And it becomes the basis from which she starts to bring case after case after case on behalf of man. That was what she did. She made it visible to men by making it about men and how sex stereotyping in the law doesn’t just disadvantage women because it makes assumptions about who stays home and cares for people and who is the breadwinner, but that it also hurts men. For me, Mary, I guess these are all just a study in teaching people empathy and that she’s trying to say, if I can’t get you to imagine what it’s like to be a woman, let me try to get you to imagine what it’s like to be a man who’s being. Victimized in some sense by a legal regime of bias, of bias about what we think the different genders do. She believed in systems and in changing systems. And I think while she had a lot of patience for protest and cacophony and bodies on the streets, her world was never that. It was how do I tinker, tinker, tinker, fiddle, fiddle, fiddle, persuade, persuade, persuade, find male allies where nobody would look and in so doing, alienate almost everybody who says hashtag activism, you’re doing it wrong, and yet hers endures.

S1: We have to talk about what comes next year, I mean, within hours of her death, it became clear that she had dictated to her granddaughter this dying wish that whoever replaces her not be nominated, seated until after the presidential election and also within hours of her death, we have the president and Mitch McConnell saying they will not grant that wish. There’s been a lot of talk in the last couple of days about the hypocrisy of it, of the fact that Mitch McConnell held that seat open while Obama was in office, but is now rushing to fill it. But in some ways, is that the argument we should be having? I mean, it is juicy to look at tape from Lindsey Graham saying literally, I want you to call me on this. I will not put someone in the Supreme Court if it’s during the last year of the next president’s term and have him say, you know, hold the tape, you know, and then, of course, immediately turn around and say, of course, I’m going to fill this seat. But is that the fight we should be having?

S2: Yeah, I mean, I think I really felt like it was sort of a Jon Stewart affectation of, you know, we’ll get some gotcha video and that will shame them, you know? Oh, here’s you know, here’s Lindsey Graham saying something different. Here’s Chuck Grassley saying something different. And I felt like that didn’t work in 2016. Right. We had videos of Orrin Hatch saying, you know, who’d be great instead of Elena Kagan, Merrick Garland. And we thought that would somehow shame Republicans into being like, oh, I said that. Well, then I better be consistent. And I sort of feel like, I don’t know, maybe that works in, like, murder, she wrote. But it doesn’t work in contemporary politics to have video of someone saying the diametrically opposed thing four years earlier. I think that you just do what Lindsey Graham did and what Mitch McConnell did, which is you say all that was different because the Republicans control the Senate or it was the second year of the Obama presidency or, you know, he wore a tan suit. Like, I just I’m not sure that a ton of effort should be expended on trying to shame people into having consistent views because this was about power in 2016 and it was about power in 2020. It’s who controls the Senate.

S1: Yeah, I mean, I guess let’s talk a little bit about what has to happen now. Both if you’re a Republican who wants to see a new justice seated and if you’re a Democrat who wants to block this or at least create enough fear and Republicans that they don’t move forward. I mean, if we’re talking about getting a nominee through the Senate, if Democrats wanted to block it, they need to peel off. I think for senators from the Republican side is that I think that’s right, because Mike Pence.

S2: Right. Is the the tiebreaker. Yeah.

S1: So we’re down to the same people we seem to always be talking about. Susan Collins in Maine, who is in a very tight race with Sarah Gideon. You’re looking at Lisa Murkowski, who isn’t in a race, but said the day Ruth Bader Ginsburg died, I will not seat someone because it’s too close to the election of Cory Gardner in Colorado. You have Mitt Romney. So what is the sort of ground game now in Washington as we move forward?

S2: I think it’s feeling very Groundhog Day ish to me. It feels like this is we had this round impeachment, like you said, we had it on the Cavnar vote. You know, who can Mitch McConnell release if need be and still get what he wants? And I think it’s it’s really hard, you know, but it’s it’s there’s this other question about whether it then happens in the lame duck session. Right. It even if it doesn’t happen prior to the election, it could still happen in the in the lame duck session. And that’s a whole other when there’s nothing to lose. Exactly. You can lose your seat. And still. So I think that there are a set of questions around which of those is more advantageous. And in a weird way, I think all of that slightly misses the point, which is regardless of what happens, this is fundamentally changes campaigns. This changes the race. This gives at least I think Mitch McConnell says Republicans a chance to run on a thing that really, really, really did clinch the vote for Donald Trump in 2016, which is I’m going to change the court and Roe is going to go away.

S1: And we’ll change the race for Democrats, too. I mean, I think the data I saw was that ActBlue, which supports Democratic candidates, had some of its biggest fundraising, the.

S2: Night, Ruth Bader Ginsburg died well, so this, I think, is the interesting question is I’ve been saying for four years and you’re probably bored of me saying it. Democrats just went on to scream save after Merrick Garland was nominated. They didn’t largely run their Senate races around it. Obama, I think, should have been jumping up and down on the White House lawn every day. I think Hillary Clinton should have been jumping up and down saying this is a stolen seat. It should not this should not have happened. And every single Democrat in a Senate race, I think should have been campaigning on, holy cow, they’re stealing a seat and almost universally crickets. And just by way of contrast, you know, Ted Cruz was openly running on John McCain, openly running on the proposition that not only did we steal that seat, they were saying in September, October of 2016. But if Hillary Clinton wins and we control the Senate, we will hold that seat open for four more years or eight more years. They are not going to seat a justice. And I just think the disparity dovetails with this general, you know, enthusiasm gap around the court that has existed for decades where Republicans run on the court and Democrats say, you know, if you care about the environment, if you care about worker’s rights, if you care about women’s rights, if you care about racial justice, if you care about LGBTQ rights, vote for me without explaining to voters that you can care about all those things. You can legislate all those things and lose the court and lose them all. And I just think we utterly failed in 2016 to have a proportionate conversation about that. So one side was that chance now. Well, that’s it. And you’re exactly right that even prior to the ActBlue fundraising, I was seeing polls that said actually post Cavnar. Democrats actually really are energized around the court, particularly women, and that 2016 is not going to replay itself with kind of general apathy around the court. Even before Justice Ginsburg died, those numbers were changing.

S1: It’s funny because in these last couple of days, I keep seeing quotes from Ruth Bader Ginsburg making the rounds and they really underline what you’ve said about her, how she’s this sort of small C conservative, really believed in the system, sort of pulling the levers one at a time, making logical arguments like there’s this one quote about, you know, real change. And during change happens one step at a time. And I just I compared that with what our colleague Jim Newell wrote about the political process that’s about to happen. And he ended his piece on Friday night saying, we’ve been in a slow moving political crisis for a while. It’s about to get fast. And it made me think how I think part of what we’re mourning with Ruth Bader Ginsburg. Is the ability of her approach to work that slow, methodical work? That’s part of what we lost.

S2: I love that because it reminds me of one of my favorite Ginzberg stories, which I can’t tell in her voice and do it justice. But she always told the story of. There was a famous toward the end of his career, then Chief Justice William Rehnquist pens this really arresting piece about the Family Medical Leave Act, and he’s on her side of it. And he writes this piece about, you know, stripped down, basically talking about what it’s like to be a caregiver and to be pressed and stressed and how you need to be able to take care of your family. And it turns out, of course, this is very much while it’s surprising from what Rehnquist is, totally informed by his real life view of the world, because his daughter at that point was a single mom and was trying to raise kids and was juggling and he was living with that. And he really saw what her life was like and ends up writing this opinion that’s incredibly solicitous of women and caregiving and the juggle and the pressure. And she always told this funny story where she would say, you know, and then Marty read the draft opinion or read the opinion and sort of hollered, Ruthie, did you write this for him? You know, like did you did you go straight this thing? And she always, I think, told it as a story of how I guess it’s back to those corny words. Right. Empathy and that we can bring each other along and listening and that it’s never too late to change. I think she felt like her job. And I hate that she characterized it as being a kindergarten teacher because it was so much more lofty than that, Mary. It was just to make that which is not visible in this case to man, but make it visible, help people see what they don’t know. And I think she lived that dual life her whole life, right. Where she knew what Lilly Ledbetter suffered in terms of unequal pay. She knew what the women of Wal-Mart suffered in terms of discrimination. All of those cases are the function of her living a double life, where she was both a jurist and a legal architect, but also a woman who had been the victim of all those things. And I think what you’re describing, which is the things she would always describe, is that this act of persuasion of I’m going to try to draw a picture so that you can understand the thing that you can’t see and maybe that will at some point lead you to write about the Family Medical Leave Act in a way that understands what you didn’t see but do. See, that was how I think truly every day, that’s what she when she pulled her like little stilettos on and went into the office, that’s what she was thinking, I think. And I think you’re completely right, that not only is that broken down at the court, but it’s broken down in Congress. It’s broken down in so many of our interactions with each other, that benefit of the doubt that. Let me listen to what you are describing and see if I can make a space for that in my world view. And so I think in a way, you’re quite right. I think what we are mourning is not. This iconic gangsta, you know, rapper version of RBG who set the world on fire, but for me, a much, much deeper, sadder belief in the art of empathy and persuasion as a means to get us to work together on things for the collective good. I don’t know if that makes sense, but I think that’s that’s always what I think her project was and. I think you’re right, I think it’s vanishing before our eyes.

S4: Dahlia Lithwick, thank you so much for joining us. Thank you. Dahlia Lithwick covers the courts and the law for Slate. She’s also the host of the podcast Amicus. And earlier this year, she did a project that focused on what happened to the other women. And Ruth Bader Ginsburg is Harvard Law class. It’s really fantastic. You can check it out at Slate Dotcom. And that’s the show. What Next is produced by Mary Wilson, Jason de Leon, Danielle Hewitt and Elena Schwartz, Alison Benedict and Alicia Montgomery, our fearless leaders. And I’m Mary Harris. I’ll catch you back here tomorrow.