Quiet Words That Remain

Listen to this episode

S1: This ad free podcast is part of your Slate plus membership.

S2: Hi, and welcome to Amicus. This is Slate’s podcast about the courts and the law and the Supreme Court and the rule of law. I’m Dahlia Lithwick. I cover one of those things and I’m a senior editor here at Slate. This past Wednesday, Justice Ruth Bader Ginsburg casket was placed on the steps of the Supreme Court. And one hundred and twenty or so of her former law clerks lined those steps as honorary pallbearers. The image of them standing there is stunning in this period of public mourning.

S1: The time and space for anyone’s private grief over this loss of a national heroine has just been trampled by the pounding hooves of outrage and whiplash. Quick reversal and legitimate fear for what comes next. And that makes me sad because I don’t think RBG herself would have wanted us to be girding for an all out take no prisoners civil war as the result of her death. That’s just not how she saw the world. The anger and the outrage is bound up inextricably with the grief, but we’re going to try to hold it apart, at least on this show today in this special edition of Amicus. We just wanted to honor the justice by reflecting on her legacy and maybe some of the lost details of her work. We wanted to celebrate the craft and the wisdom of her lawyerly approach to the world with the kind of care and scrupulousness that she would have demanded of us. Now, later on in the show, we’re going to share remembrances and words of solace from two of her classmates that you hopefully got to know and love in our class of RBG series this past summer. Look, we’re not stupid. We understand the country is on fire and that people are anxious and angry. On Saturday, I promise we will leap right into the sound and that fury with Mark Joseph Stern and Mr. But not now. Let’s not erase the legacy of one of the formative civil rights lawyers and constitutional pioneers just yet. And so it feels fitting to me to honor a justice I have referred to as the dork stalk the wonk’s wonk with a just really dorky, wonky, close reading of some of her lesser known jurisprudence, the cases you might have missed behind and beneath the big ticket. Lily Ledbetter’s in the hobby lobbies in a really lovely tribute to IBG. Penned in The Washington Post this week, Professor Pam Karlan and Aziz Huq note that we are not paying enough attention. Just, for instance, to Ginsburg’s broad and keen understanding of the plight of the weakest and most vulnerable. They point us to a 2005 case Helbert versus Michigan’s Halberd against Michigan No.

S2: Oh three one oh one nine eight. The Federal Constitution’s due process, in which Ginsburg wrote the court’s opinion holding that indigent defendants who seek to appeal a conviction after they’ve pleaded guilty must have a lawyer appointed to represent them. More than two thirds of the prison population, she wrote, had not completed high school. They lack basic literacy skills. It was, she wrote, quote, a tall order for a defendant of marginal literacy to understand the potential defects of a plea deal.

S3: The typical defendant in Halberd situation has had little education. Many like Halberd himself so far, learning disabilities or mental impairment. We note, too, that, however, did not intelligently forego any appeal. Right? When Harvard elected to plead no contest, the trial court did not convey to him in plain English that if he gave up his right to trial, he would have to pursue any appeal from his conviction or sentence on his own.

S1: And then I’d also direct you to Olmstead vs. L.C., Sir nineteen ninety nine challenge brought by two female patients with mental disabilities. They were challenging Georgia’s Department of Human Resources for the decision to keep them in psychiatric isolation. Her opinion found that states are required to place persons with mental disabilities in community settings rather than institutions if that placement can reasonably be accommodated.

S4: Unnecessary segregation of persons with mental disabilities perpetuates unwarranted assumptions that such persons are unfit for or unworthy of participating in community life. If unnecessary institutionalization is the price that a person with mental disabilities must pay to receive needed medical services, then that person is forced to forego the pleasure of the less restrictive living that person could enjoy given reasonable accommodations. Persons with disabilities, on the other hand, can receive needed medical services without similar sacrifice.

S1: And so joining me now to dig a little deeper into these overlooked opinions and big themes, the dissents and the advocacy of Justice Ruth Bader Ginsburg is Professor Gillian Metzker She is the Harlan Fiske Stone, professor of Constitutional Law and the faculty co-director at the Center for Constitutional Governance at Columbia Law School. Professor Metzker clerked for Justice Ginsburg in the 1997 98 term. Jillian, thank you so much. I know you’re in D.C. and you’re busy. Thank you for making time to be with us this week. Happy to be here. And I want to just start by saying I am immensely sorry for your loss. I know that for most of us, this is a political and hero loss. For you, it’s a personal loss. Thank you. You are one of over 100 former RBG clerks that are taking turns right now in DC. I gather you’re all camped out at hotels, standing vigil. Can you describe what is going on, how you’re organizing it, what you’re seeing when you’re standing at the court?

S5: It’s an amazing experience, actually. The first day you have the clerk welcoming ceremony where the justice arrived in a hearse and the casket. And because of covid, we all spread out across the plaza. And it’s just an amazing graphic. When I saw it afterwards. There is something incredibly powerful and wonderful about being with this group of other clerks and having this intimate bond of knowing this amazing woman and having worked with her and having learned from her and having idolized her and everyone there is doing night shifts that there is twenty four hour guard by the clerks throughout the nights and throughout the days for two days. And it’s all because we loved her. And it’s a it’s a wonderful feeling.

S1: I think one of the reasons I wanted to talk to you, Jillian, I wanted to talk to you on the show for a long time. But we’ve read so many remembrances of the justices in the last week from. So many clerks and in one sense, you get this just really consistent picture, this is someone we all think we know a little bit, right? She’s meticulous. She’s exacting. Until you figure it out, she can be a little tough on you. She never sleeps. She cares deeply about her clerks and their partners and eventually her grand clerks and the whole clerk family.

S6: I feel like I get it, but I feel like I don’t get it. Like, can you tell us what we’re missing in all of these remembrances, sort of shore up the sense we have of her from the movies and everything else, but what are we not seeing? What do we not know?

S7: Well, I think one thing that people haven’t talked about as much is that she did have this well, two things. One is she was just a little bit of a gossip. I don’t know that that’s gotten out there so much.

S5: But she’d like to know if one of her clerks was dating another clerk kind of thing or, you know, other other things like like that. And so that’s one thing that hasn’t gotten out. And the other thing that I don’t know if it’s gotten out, she was very serious. And there are many frivolities in life that did not she did not understand and they did not register.

S7: Her one passion on that front was opera, but she was very serious and passionate about opera. But she could she did have a sense of humor and she was willing to go along with jokes and the occasional impish prank or the occasional impish comment. You know, it’s certainly not what would rise to the fore if I was going to talk about Justice Ginsburg. Oh, her sense of humor. But she did have one. And I don’t know that I’ve heard so much talking about that.

S1: I remember interviewing her and asking her what was kind of the core of this deep, deep affection between her and Justice Scalia. And she said he’s just the funniest man. And I think she felt that way about Marty, too, that I think it’s true that she wasn’t doing stand up, but she was very, very like had a really refined sense of humor. Like other people, making her laugh was important to her.

S7: Exactly. And then so that’s why she was sort of willing to go along with there being some Clark stories about different jokes or things that they put together and then she was willing to go along with. And I think it’s the same thing that she appreciated that that said.

S1: So I feel that the other thing that has been sort of under scrutinized underserved this week is her jurisprudence. And I know I’ve done like a lot of interviews and I feel like you talk about Shelby County dissent and you talk about Leadbitter dissent and you talk about Hobby Lobby. But I just Jilian, there’s so much more. There’s so much more. And one of the reasons we wanted to have you on was to maybe geek out a little bit on some of the doctrine that maybe doesn’t have, you know, the funny one liner or the great metaphor. But that really, insofar as it’s, you know, either enduring or prescient or really captures some part of her jurisprudence that hasn’t gotten enough play. And so I wonder if we could just start by asking you if you have either a favorite case or a favorite line of cases that we should be paying attention to because it’s somehow emblematic of who she was and what she valued.

S7: I do. And it is totally geeky. It is a federal court procedure and her expertise and her approach to federal court procedural cases. She loved federal court procedure. If there was a case on the docket that involved some arcane rule, federal procedure, you knew she was going to jump on it. And let me say for the record that she didn’t have a lot of competition from the other justices jumping for these cases, but she would want that one. And if you look through the Supreme Court’s jurisprudence, there are a lot of procedural cases that she wrote. And it’s not just that she was extremely adept at procedure. She had a vision and understanding of federal court procedure and civil procedure that I think hasn’t been fully appreciated.

S1: We’d stop for one little second, Gillian, and explain for listeners what we mean when we say federal procedure.

S7: Sure. So in you have two court systems, federal courts, state courts, mainly of many other courts, but those two men and when you’re bringing a claim in federal court, you know, there’s a whole bunch of rules about how you file it and can you bring it as a class action and what is the timing when you have to give notice all of these things that are procedural rules and they are set out in the federal rules of civil procedure and. When you’re in federal court, you you’re often there because you’re raising a question of federal law, but sometimes you’re there because you’re you’re from a different state than the person you’re suing. And that’s something called diversity jurisdiction. It’s a one of the core bases of federal court jurisdiction. More important, perhaps historically, but that continues today very much. And there’s when you have a case that falls within that category of diversity jurisdiction, it is actually a case governed by state law. But that takes place in federal court. And you get these incredibly difficult questions about whether or not state substantive law would govern or federal procedural law would govern. And how do you know whether a state law is substantive or procedural? And the court has over the years developed a few very complicated doctrines on this issue over the 20th century. And this area matters because even though it sounds like it’s and in some it in truth is very geeky and arcane, it actually involves fundamental questions of the relationship between the federal government and the states. And so one of the ways that I think Justice Ginsburg was particularly important is that she understood that the way you take account of state interests is often in the details of how you read, for example, federal rules or federal requirements to be accommodating the state interest and not simply coming down with a hammer and saying some things outside of Congress’s constitutional powers. So there is a case that goes by the name of Shady Grove, which involved class actions. And it was a claim for under New York law, for a kind of statutory damages on an insurance claim that under New York law, if you had sued in New York courts, you could not bring collectively to class action. And that makes kind of sense because you could make what was really a statutory penalty into a huge amount liability. But the case was brought in federal court and in federal court. There’s a federal rule rule twenty three, which allows class action. And so the question was whether when you’re bringing this claim for the statutory penalty under New York law, you could bring it as a class action in federal court because the federal procedural rule let you do that, even though you couldn’t do that in state court. And would that be sort of trumping the state’s substantive choices? The court ends up saying you can bring it as a class action in a plurality written by Justice Scalia following a very kind of broad reading of the class action rule as solely procedural. And then you have a kind of in between foot in each camp, concurrence from Justice Stevens. And then you have Justice Ginsburg’s opinion dissenting. And her main thing was, why are we reading the federal rule to conflict with New York’s law? Why don’t we just read rule twenty three as accommodating New York’s choice not to allow collective penalties? And it just shows the way you can accommodate this kind of difference in approach without trumping one or the other. And she has a great line in there which she says, let’s avoid conflicts if we can do so. And that was really her approach to federalism. So similarly, often in cases involving a supposed clash between federal law and state law, she would say, actually, the federal law doesn’t have to be read as as clashing with the state law. We don’t have to preempt the states here. And so that those that line of both procedural sophistication with these really tough, complex knots of questions of doctrine and this understanding of how you can accommodate different bodies of law in this very nuanced way, I don’t think that’s gotten enough attention.

S1: I love it. I’m sitting here thinking probably Shady Grove will never be set to rap music. But but you’re right. In some ways, it’s actually very emblematic, not just of her, like super nitty gritty in the weeds, nuts and bolts approach, but also just this general life approach of why create conflict if you can avoid conflict, which quite literally is how she dealt interpersonally. It is how she got along professionally. So it’s sort of knits together such a nice ongoing theme of our remembrances of her, just both personally. Is there another case that we’re not talking about enough that is. Similarly, just kind of narrow, but broad in a way that that bespeaks how she approached her job.

S8: The other case that I think has an opinion that hasn’t gotten enough attention is the dissent part of her opinion in NFIB vs. surveillance, which was the original constitutional challenge to the Affordable Care Act. And she agreed with the chief justice that you could have you could uphold the Affordable Care Act on the tax. So that’s the concurrence part doesn’t take up much of it. But the rest of the opinion, I think she does an excellent job of just showcasing the kind of real flaws in the account of the Affordable Care Act as being outside of the commerce power. And this will, you know, if hurt of her opinion had been adopted. The current case coming up on the Affordable Care Act would wouldn’t be a nonentity. But what she what she argues there, and it brings together a couple of different lines in her jurisprudence. She always was focused on what things mean in reality. So if you look at her gender discrimination cases, for example, she’s great at stating the broad principle. But what she really understands is how gender discrimination translates in the world for working class women, for women who are poor and can’t afford contraception. And that’s really her understanding. And similarly, in this case, even though it’s about big constitutional principles of the commerce power, her main point is it is inevitable that you will need health care.

S7: Everyone will. And she gives statistics. Within five years, 90 percent of the uninsured will need health care. And she’s basically making the point that’s just reality. And so stop giving me these false hypotheticals about your if you force people to buy health insurance, it’s the same thing as forcing them to buy broccoli because no, it is not actually inevitable that you must buy broccoli or eat broccoli. Right. And also, you want to eat broccoli, eat broccoli, but I don’t have to subsidize it. And in health care, we don’t let people die in the street. So we subsidize it. And it’s just that kind of reality that shows how the mandate was just an interwoven part of something that was clearly within the commerce power as it was understood at the time. And as a commerce power regulation, you wouldn’t have the current challenge to zero out the tax and it’s outside of the tax power.

S1: OK, so what you’re saying is that the challenge the court is about to hear immediately after the election, that challenge arises because the court in this tortuous way says in the first Obamacare case that, no, this isn’t properly within Congress’s power to regulate commerce, but it’s a tax. And you’re saying, look, if they just kept it in the realm of commerce regulation, even if Congress had zeroed out the tax as it did, the ACA still would have survived. This challenge would have been precluded. It feels like it’s of a piece with this theory you have that she’s like, do it the easy way and the non conflictual way, as opposed to do it the super hard way. That just raises new issues. I’ve been kind of poking through her cases that I don’t think get enough attention. And I love that you’re pulling on this thread, Gillian, which is she’s just incredibly pragmatic and realistic about how the world really works. And, you know, I was just looking at her opinion in a case called Almstead, where she’s just like very, very sensitive to what it is like to be a person with mental disabilities who’s institutionalized and looking at her line of cases about what prisoners, what benefits prisoners can get if they’re indigent and they don’t have somebody, a lawyer defending them. And if they can’t read what that’s like, I mean, there’s all in some sense, you know, this is Lilly Ledbetter saying to the court, you have no idea what it’s like to be a woman who is in a workplace and who doesn’t get told for years. You don’t know what it’s like to work at Wal-Mart and have people like crazy grab asses, you know, telling you all day that you’re inferior. And I just want you to solve this one mystery for me, because if we could agree and I think we do that a big, big part of what she brought to the court was this here’s an obvious thing that you don’t seem to understand kind of jurisprudence. And at the same time, she was not someone with mental disabilities who was being institutionalized against her will. She was not a prisoner who spoke English as a second language or had a fourth grade reading ability. She was never a woman who worked at Wal-Mart.

S6: And so in this sense, and this is for me, the ultimate riddle of RBG, she actually had an incredibly cloistered upper middle class life almost from beginning to end, you know, other than a tough period when her dad was suffering financially. But.

S1: How does a person who, in effect her life as lived, looked exactly the same as a lot of the justices on the court who don’t seem to understand what it is to be an indigent defendant or a woman at Wal-Mart?

S6: So how does she do this trick, Jillian, of sort of managing to imagine herself into a situation that, in fact, is not something she’s ever lived? I mean, the sex discrimination cases that she lived. But in case after case after case, she seems to see a life that is, in fact, not necessarily her life and has this kind of vast, imaginative ability to, I guess, empathize with that, which is different. And in some ways, this is surprising for somebody who is both, as I said, you know, pretty cloistered for much of her life. Right. She lived at the Watergate, but also someone who doesn’t come across as a stunning empath. You know, she comes across as pretty reserved and introverted. So I don’t know exactly what I just asked you. But if you can solve that mystery for me, I will I will be really grateful.

S7: Here’s my sense of it. I mean, I think actually, if you look back at her early childhood, I think she did have more than enough with that love of working class, but more understanding of different economic circumstances around her. And so I think she did have some exposure to that. Her mother, of course, was not able to do the kinds of things that she in a different generation might have been able to do. So she could see how restrictions, whether it’s based on sex stereotype or something else, just could impede your ability to fulfill your life chances. I think she she really could see that. I think the other thing to bear in mind is she was an advocate and this is a loss on the court that, again, maybe hasn’t gotten enough attention. But we think of her as a great judge. And then she was a professor, but she spent a good chunk of her life being an advocate and hearing stories and thinking about ways to translate that into the law. And, you know, the great advocate before her with Thurgood Marshall, we don’t have other advocates on the court now. I mean, the people who’ve been in practice as lawyers, but that kind of really committed to raising the condition of others and assert their rights and their needs in court. And I think when you’re in that role, whether it’s because you’re hearing so many stories or because you need to sort of understand what the real impediments are to know strategically what you should be challenging gives you that understanding. And maybe that explains the dichotomy between those two between, you know, certainly from her her life with Marty on more the more sequestered, privileged life that she was able to lead and her deep appreciation and empathy for those who work who do not have those circumstances.

S1: So here is my truly very last question, Jillian. It’s the other mystery, I think that here’s a little bit of audio. This is Justice Ginsburg sort of famously arguing that sex discrimination laws this is in the 60s and the 70s where there’s hundreds and hundreds of laws that say, you know, women are a hothouse flowers and men are manly men. And she’s arguing that, yes, all of you male justices and judges, you think that you’re protecting us. But, you know, her line is we’re not in a pedestal. We’re in a cage.

S9: This case, more than any other yet heard by this court and illustrates the critical importance of careful judicial assessment of law, reinforced sexual pigeonholing, defended as a remedy for on any degree of scrutiny that is more than cursory for two years, conclusive presumption automatically and irreparably writing husband principal breadwinner displays the pattern Justice Brennan identified in front of Yero and practical effect laws of this quality helped to keep women not on a pedestal, but in a cage. They reinforce not Ramit women’s inferior position in the labor force.

S6: And I and I think that that only half gets at her gender thing. And I want you to just. Help me understand this.

S1: I actually the more I’ve been rereading and listening to those early cases when she’s it seems like she’s doing a party trick, Jillian, where she’s like finding these males and they’re being discriminated against because they’re widowers and not widows or they’re not you know, they can’t avail themselves of the tax laws to take care of their ailing mothers.

S6: And originally I thought, oh, that’s that’s the party trick. Right, is she’s making men visible to men because they can’t imagine the sex discrimination would hurt women. And in the last two days, it’s occurred to me I actually think she really loved those men. I mean, she loved Maurits and she loved Stephen Wiesenfeld. She stayed in touch with them their whole lives. I actually think what she was doing was not a zero sum party trick where she was trying to get women more rights. I think she actually believed that fully realized men were really needed to get out from under the crushing burden of gender discrimination as it applied to men, if that makes any sense.

S7: I think that’s I think that’s definitely true. I mean, I think she was trying to show not just the harm on men to show the harm on women, but to show the harm on men, because men are harmed, too, by sex stereotypes.

S8: Everyone is denied their ability to realize their full potential and constrained in some way, whether it’s a man who’s not allowed to spend time being a father or a woman who’s not allowed to go to VMI. And it’s it’s the same thing. Both are harmed. And I think that was actually something that she really wanted to emphasize. And, of course, you know, Marty really wanted to spend time being a father. And so I think she’s I think she was always attuned to it. I think she also saw it. And you know firsthand, Gillian.

S1: I’m going to let you go, but I also just need to ask you this. I’m sure your students, your female students are in deep grief. I am in deep grief. My teenage sons can barely pick themselves up off the floor. What are you telling people when they say to you, I am so sad and I don’t know that I can recover? What what is what are you what are you saying?

S10: Well, vote as a first step, please.

S8: That one has to be hammered, hammered, hammered.

S7: The arc of justice over time, we will get there truthfully at the moment, I’m a little bit sad, so I’m not sure that I’m in the cleaning people off of it, off of the Met stage. But, you know, when the justice began her work, it wasn’t obvious that was going to succeed and. It’s there’s still work to be done, and I do know that the last thing she’d want is for us to, with her passing, sort of throw up our hands and think nothing can go further. I mean, she’d be quite annoyed about that, I think, and she’d want us to keep fighting.

S1: Gillian Metzker is the Harlan Fiske Stone Professor of Constitutional Law and the faculty co-director of the Center for Constitutional Governance at Columbia Law School. She clerked for Justice Ginsburg in the 1997 98 term and she is currently in D.C. as part of all of this mass beautiful vigil of the Ginsburg clerks. Gillian, I know you’re busy and you have to run and teach a class, but I cannot thank you enough for making time and my heart goes out to you. I’m sorry for your loss.

S10: Thank you so much.

S1: And now we turn to some familiar voices. After Justice Ginsburg’s death, we wanted to check back in with Flora Tional and Judge Carole Brosnahan. You heard from them in our series, The Class of RBG. Carol and Flora both entered Harvard Law School with Ruth Bader Ginsburg in the fall of 1956. They were part of that tiny cohort of women in the class of 1959. Carol and Flora were each trailblazers in their own right. They lost a treasured pair and a fellow pioneer and I think a hero in some sense.

S11: And so we wanted to end this show of understated remembrance, fit for a notoriously emotionally restrained justice with their words. You’ll hear Carol’s voice first, followed by Flora.

S12: We were a very small group. There were nine that started out in our class. Ruth was an icon for me after graduation when every door was seemingly closed to me, although she was and has much as she had to do. She made a video for my retirement event and sent a lovely no mine was the handwritten note from from Ruth. It’s amazing that she had the fortitude and willpower to survive as long as she did the message that Ruth gave through her whole life. You just don’t quit. Ruth was the classic model for you can do anything you want to do. You can be a mother. You can be a wife. You can be a lawyer and you can be a judge. And if ever there was a message for the young women today, it’s that I think it’s going to affect young women and I think we’ll lose Roe v. Wade.

S13: I think they are going to push a nominee and it may affect the election, certainly going to affect the health care.

S12: What Ruth did was to change the world. The trial judge just kind of strange one person’s life at a time, if you’re lucky. But she 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.

S13: The only thing that keeps me optimistic is that I think the pendulum America goes left, America goes right, but it’s never static. And we’ve had many crises in the past and I’m sure we’ll get through this one. But her her dad is kind of the earth shattering, particularly for young women, I think.

S14: It is just a hard time to.

S12: With the country it is, and women in particular, I think my daughter is now a judge and she called, she was all upset.

S1: What did you say to to comfort her, or were you not capable of comforting her then?

S12: Sort of the only thing you can say is a gig at work.

S15: I’ve always said that. And it did. Yes.

S12: So there’s not much you can say by way of comfort. The only thing you can say is don’t quit.

S13: Well, I’m going to go down to Florida and do my best to help turn the tables there. And I’m going down so I can vote in person notwithstanding the virus. Wear a shield. I’ll do whatever I can. I know among the most vulnerable. But I think it’s really important to get out there and get the vote, to make donations, to support candidates, to see what you can do, to talk to people, to really work hard for Florida. At least I think it could be turned into one of my daughters not to judge.

S16: My other daughter is now. Writing letters to voters in Wisconsin and Minnesota and writing personal handwritten notes saying, please vote, and she gets lists from, you know, from voter organizations and it’s writing letters and she’s not quitting.

S1: I guess that’s one thing you can say, Carol, I love that we started with handwritten letters from Ruth to you and we’ve ended up with your daughter writing handwritten letters to voters in Wisconsin, it seems.

S6: Right, a perfect circle.

S1: I think I just want to say thank you for, you know, being on this journey with us before and being here to talk to us now. I really felt like I needed to hear what you had to say. And I think a lot of listeners will just take a lot of comfort hearing your voice. So thank you for being with us.

S16: There’s a line from Dylan to all of us to not go gently into this good night. So she did not go gently into this good night.

S1: Nor will I judge Carol Brosnahan and Flora Schnall, classmates of the late Justice Ruth Bader Ginsburg, on not quitting.

S2: And that is a wrap for this episode of Amicus. Thank you so much for listening in. Thank you so much for your letters, your questions and your condolences this week. You can always keep in touch with us at Amicus, at Slate, Dotcom, or you can find us at Facebook dotcom slash amicus podcast. Today’s show was produced by Sara Burlingham. Gabriel Roth is editorial director. Alicia Montgomery is executive producer. In June, Thomas is senior managing producer of Slate podcasts. And we will be back with you with another episode of Amicus on Saturday morning, our usual time. Until then, hold on tight.