Special: SCOTUS After Ruth Bader Ginsberg

Listen to this episode

S1: Hi, this is Mike Pesca, and this is I guess we’re going to call it an emergency just and a sad just because Supreme Court Justice Ruth Bader Ginsburg had died, according to NPR. Days before her death, Ginsburg dictated a statement to her granddaughter, which said, My most fervent wish is that I will not be replaced until a new president is installed. That wish, I believe, turns to fear with Mitch McConnell’s statement saying essentially, we shall go forward when given a nominee with a vote. Joining me now is Emily Bazelon, who is a staff writer for the New York Times Magazine, senior research fellow at Yale Law School, and of course, contributor and a panelist on the Slate political gabfest. Emily, thanks for joining me. You’re welcome. And also, I think condolences, because you did know Ruth Bader Ginsburg fairly well, is that right?

Advertisement

S2: Yes. Justice Ginsburg served on the D.C. Circuit Court of Appeals with my grandfather years ago, and she lived in the same building in the Watergate as my grandparents. And so I knew her personally because my grandmother had Taylor like a clothes maker who had Justice Ginsburg admired, who for a while was also making her some clothes. So I’ve also interviewed her professionally. But, you know, it’s funny. I mean, what I mostly think about right now is that when I think of myself as like a professional woman involved in law, like there’s so many ways in which that came out of Justice Ginsburg, the world that Justice Ginsburg made possible for so many people.

Advertisement
Advertisement
Advertisement

S1: Yeah. And if I if it’s not too personal or telling tales out of school. So your grandfather, David Bazelon, am I right about that? Yeah, it was that yeah. So he was one of these guys. There’s always in every generation people who would have been on the Supreme Court or should have been on the Supreme Court. But for some vagaries of who was in office at the time, who’s an esteemed justice, did you ever talk to him about his opinion of Justice Ginsburg’s jurisprudence?

S2: So Justice Ginsburg came on to the D.C. Circuit Court of Appeals shortly before my grandfather took senior status in the early 80s, and they actually clashed. In some cases, my grandfather was more of a liberal than Justice Ginsburg was in a few cases involving the habeas rights of people in prison. So these are late stage appeals. After you’ve exhausted your direct appeal, what are the rules? How do you challenge your conviction at that stage? And my grandfather thought that he had lost Justice Ginsburg’s vote to at the time, Judge Scalia. They were all on this court together. And I think he at the time worried that Justice Ginsburg might not prove to be as much of a liberal as he hoped. He was very much in that in that mold. But once she came, went to the Supreme Court, I think in a lot of ways, her she was emboldened. Her jurisprudence became stronger in that regard.

Advertisement

S1: Was it just that the law dictated her positions?

S2: I mean, that’s a really interesting question. I need to go back and read these opinions and decide for myself. I think one of the questions would be, was she did the law dictate the result? Justice Ginsburg was very much a procedural she was a real stickler for the rules. And so it’s very possible that my grandfather saw more wiggle room in the rules that then she did and maybe want to go back and look at those opinions. I’ll agree with her. I’m not sure. But the other question was whether she had her eye at the time on the Supreme Court.

Advertisement
Advertisement

S1: Mm hmm. But then again, also think about the status of your grandfather and the leeway he would feel to operate within the law, given his status and what she had to feel, knowing what we know about her, her upbringing and her path to the Supreme Court and how constrained and kind of perfect she always had to be to attain her positions.

S2: Yeah, that’s really a good way to think about it. And also, he was at the end of his career and she was at the beginning of her career as a judge. And so one’s considerations, how bold one is willing to be. Sometimes those things change over the course of one’s professional life.

Advertisement

S1: And so maybe that helps explain it to right when when you have no appeals to give at the right. So let’s talk about politics and the politics of this. It is my recollection, my strong recollection that Mitch McConnell articulated a philosophy that no vote should come for a Supreme Court in an election year. But I was reminded because I was just watching Fox and Brit Hume rephrased what the principle was. And he said that Mitch McConnell has always said that when the nominee of the president of one party was put forward and the Senate was controlled by another party, that is the circumstance in which a vote should not be given. It’s a two. Wrong question, but do you remember the the articulation of the principle in that way, and is there any logic to denying a vote to Merrick Garland but giving a vote to whatever nominee may come down the pike?

Advertisement

S2: I mean, I’m not surprised that people who want to see President Trump make this appointment and want a conservative to be affirmed would say that that was the emphasis. I think at the time there was a lot of discussion about the timeline and the real principle at stake was, is an election imminent? Should the voters decide? Right. That was the rhetoric we heard over and over at the time. The voters should decide. And right now we’re staring down the barrel of an election that is even more considerably more imminent than the election was when Mitch McConnell refused to grant Merrick Garland a hearing for that Supreme Court vacancy.

Advertisement
Advertisement

S1: So I’m looking at the Senate schedule. The Senate is out of session a couple of days at the end of this month and then from October 12th through Election Day and then four week in November, in a week in December, is there enough time to actually hold a Senate Judiciary Committee hearing and a full Senate vote and to get the pick to meet all the senators, everything that has to be done before a Supreme Court justice is picked?

Advertisement

S2: I mean, like I got to say, there’s nothing in the law or the Constitution that forces the Senate to have hearings at all. Senates, the the hearings, the Senate hearings for Supreme Court nominees are a creature of the late 20th century. So, yes, there’s time because there are no rules about how much time this has to take or even exactly what procedures need to be followed.

S1: So what happens in practical terms if Mitch McConnell, with his slim Senate majority forces, a House force, is a floor vote, say, without hearings?

S2: I mean, that will be very irregular. And then the question will be whether that will prevent Republican senators from voting to confirm the nominee. What happens next depends a lot on how strongly norms hold less than it depends on law or formal rules.

Advertisement

S1: Well, who’s going to enforce these norms? Because I don’t see them coming from President Trump or Mitch McConnell. So who might be stepping forward to say this will not happen because not of rules of law, but of norms?

S2: Senator Grassley over the summer said he runs the Judiciary Committee. Right. And he said we can’t have different rules for choosing Supreme Court nominees in terms of timing when there’s a Democratic president or a Republican president. And so he seemed to be suggesting that the rules that prevented Merrick Garland nomination for going forward should hold in this precise circumstance. And when he said that in July, we knew that Justice Ginsburg’s cancer had returned, so presumably he had his eyes wide open about what the implications of that statement were.

Advertisement
Advertisement

S1: Yeah. And the statement was the fact of the matter is that it’s been standard practice over the last 80 years to not confirm Supreme Court nominees during a presidential election year and beyond that. But what is standard practice and what could be allowed in this case are different things. What what is your sense of what Chuck Grassley might think about this?

S2: I mean, he is going to be he’s going to be stuck between his words and this goal and the intense pressure that presumably he’ll come under to confirm a nominee. I mean, there are in order to prevent a nomination from going forward, assuming we have one from President Trump, it will take four Republican senators. So Lisa Murkowski of Alaska already on the record. She thinks this should wait until after the election. The question will be whether anyone joins her. And then, you know, you also have this question of the lame duck session. My head is sort of spinning from the actual loss of Justice Ginsburg. And we should I would like to talk about that a little more. But, you know, I I wonder what you think gaming out the politics of this. Would the Republicans actually be better served by waiting if they need to, until the lame duck session, if they settle this before the election? Is that going to make it less of a kind of galvanizing get out the vote tool for them with their base?

Advertisement

S1: Yes, but this will put several Republican senators I’m thinking of Susan Collins, but I’m also thinking whatever chances Cory Gardner has, senators who are up for election in a deep, deep bind, I think said that, for instance, Susan Collins essentially has to make a promise one way or another. Either this will happen or it won’t happen. And I can’t see her getting elected and then going to a lame duck session where she betrays the voters. I can see her getting defeated and then going to a lame duck session where she does what she wants. And I got to be honest, I mean, this is a woman who has won the Goldwater Award from Planned Parenthood for being the best Republican on on reproductive issues. And despite what ads they’re playing in Maine, she actually is a backer of Planned Parenthood and legal abortion and believes in Roe versus Wade. I really don’t know what is in her heart of hearts of. How she should vote on this, and I further don’t know if she actually has the tools to discern if someone lies to her and says, oh, yes, I will vote to uphold Roe versus Wade. I don’t know if she actually is able to see through that because the Cavanough experience gives me pause.

Advertisement
Advertisement

S2: Right? Well, she confirmed both Justice Kavanaugh and Justice Gorsuch despite significant evidence that she was being played at the time. So it’s hard to put one’s faith in her. On the other hand, the list of Republican senators who might be at all amenable here to delay is not long.

S1: Yeah, and if people think, say, Mitch McConnell would be one, I don’t actually see a case for that. He his politics are not to oppose anyone who would seek to overturn Roe versus Wade. And I think maybe if you have hearings in a lame duck session that would satisfy his definition of norms, I really don’t know.

S2: Right. And also, it’s so clear that the filling of vacancies on the federal bench with conservative nominees like this is his project. This is his justification for having backed President Trump. Like there’s no it’s really hard to imagine this guy keeps doing it. Yeah, this seems to be why he gets up in the morning. So it’s very hard to see unless there’s some political chess that we just haven’t seen, like a three moves ahead. It’s really hard to see how he doesn’t go for this.

S1: OK, I want to ask some more questions, but I felt lay the groundwork on this one. If there are hearings, if there is an insistence on hearings, does that necessarily take off the table the possibility of a floor vote before the election?

S2: That is such a good question. I mean, I feel like they would just rush it through. It’s it’s really rushed. I mean, in terms of the timeline we’re used to, this would be fast. But I mean, don’t you think like they will if they want this to happen before the election, they’ll make it happen. They control the calendar of the Senate.

Advertisement
Advertisement

S1: Yeah. I mean, we know one thing about Mitch McConnell in the Senate. That guy loves Heyst, loves pushing things through.

S2: Yeah. I mean, the other thing I keep thinking about is that this is going to suck so much oxygen out of the other issues that have been dominating the election. And I think that President Trump and the Republicans will see that as an advantage. Maybe they’re wrong. Maybe it will be just as galvanizing for Democrats as for Republicans. But I think just being able to change the subject like this is President Trump getting to use his presidential authority. He gets to choose, he gets to have the press conferences. He gets to be the more celebrity version of the president that he enjoys more. I feel like he’s going to revel in all of that.

S1: Right, right. Right. And if the big fight is whoever is selected and if Amy Kunie Barrett draws the fire, it won’t be Trump drawing the fire. That’s true. Exactly. OK, I’m guilty of this. I’ve been asking you every question in regards to this one issue, Roe versus Wade. Let’s do two things. Let’s talk about the actual vulnerability of Roe versus Wade and let’s talk about everything else. So is there a case that a very conservative justice can get on the Supreme Court and yet we would still have Roe versus Wade as the as the opinion that determines our abortion policy?

S2: I think we could have like some empty shell of Roe versus Wade. I don’t think that we would have access to abortion. I think that access to abortion would become a state by state matter. There are ways in which that’s already starting to happen. And low income women in particular, and more women of color have had trouble accessing abortion easily for a few years now, depending on where they live. But I think you would see a real acceleration of that. And so the notion that there is a national right to access to abortion services would be would would end effectively.

Advertisement
Advertisement

S1: What about everything else? What about the other extremely important ways that Ruth Bader Ginsburg vote mattered?

S2: Well, right now we have a situation in which there have been instances in the last few years where Chief Justice John Roberts has sided with the court’s liberal wing, in some cases involving presidential power, like the case about adding a citizenship question to the census. And those have been important moments for maintaining the court’s kind of legitimacy, I would argue, and for exercising some kind of restraint on the court’s right wing. If we have a nominee in the mold of Gorsuch or Cavnar or Thomas or Alito, then Roberts will not have that kind of swing vote power anymore. And so in some of these cases, that is going to make a difference. And, you know, I think we can also ask some questions. If the Supreme Court ends up in some way involved in the adjudication of the November election, then will this appointee be playing a role in whatever it decides right when the swing justice shifts from Roberts to I guess it would be Gorsuch?

S1: A lot a lot of changes.

S2: Exactly, exactly, I mean, right. It’s already been a shift to have Roberts in this position. But I think when you think of one of Trump’s appointees is holding that role, that really changes what the court could do.

S1: So I want to go back and talk about I agree with your supposition that anything that changes the subject off of things like the coronavirus and the economy helps Trump. But if it becomes a referendum on this issue, on legal abortion, I mean, the polling is pretty clear. It does depend a little bit how you ask the question. But America is supportive. I don’t know, overwhelmingly supportive. But if everyone in America just voted on that issue, even given how the Electoral College is constructed, it would be a good result for Democrats. People want legal abortion. By and large. They want Roe vs. Wade. How much does that matter, though, in how politics is played these days? Well, people see it as just a straight up and down vote.

Advertisement
Advertisement

S2: I mean, the traditional answer to your question has always been that conservatives pay more attention to the court, to the Supreme Court, that it gets their base out to vote in a way that liberals haven’t met, that there’s been a certain complacency on the Democratic side, in part because Roe is in place and in part because of victories like, for example, on marriage equality that have kind of, I think, lulled liberals to a certain degree into not noticing as much the very conservative moves the court has made toward, you know, corporate power or ending campaign finance limitations in Citizens United. And so the question is whether this time will be different, whether Democrats on the left see this as the huge potential earthquake coming their way that it could be and vote accordingly, not just like more enthusiastically, but in greater numbers. And I just don’t think we know the answer to that.

S1: Right. Well, also, given that we’re talking about the swing justice shifting from Roberts to Gorsuch, might the Affordable Care Act actually be imperiled?

S2: Right. So I wrote a piece, I think maybe a year ago that was about this question of how far the Supreme Court could lurch to the right. And the question you’re asking was at the center of that piece, like if you have big social reform legislation along the lines of the New Deal and you have a court that is tempted to strike down those kinds of laws, like, does the rest of the democracy stand for that? Does it hold? Do we have a real move to expand the number of Supreme Court justices as the only tool the Democrats have to rein in the court? I mean, remember that the current number nine comes from a statute in the 70s. It’s not written into the Constitution. The number of justices changed three times in the 60s. FDR, of course, did not succeed in his promise or plan to increase the number of justices. But in a sense, he didn’t have to because votes started switching among the justices after he threatened that. And that was how the Supreme Court actually sort of pulled itself back from the brink of becoming utterly at odds with the American people and Congress and the president. And so we’ll just have like some big structural, huge breakers coming our way and these questions about whether the court will sort of realign itself because there is danger in being the least powerful branch that if you’re totally out of sync with the rest of the country.

Advertisement
Advertisement

S1: Yes. And I don’t sense that America is so willing to engage in large experiments, large governmental process, reform experiments. But, you know, there’s a chance that if this is so unpopular, Joe Biden could say, that’s fine when I get in putting five more justices on the Supreme Court.

S2: Right. I mean, it’s not a magic number like we’ve had it. We’re used to this number of nine. But there is it’s it’s not required. It’s a choice. It doesn’t even have to be an odd number. I found. Yeah, there’s a whole interesting argument that we’d be better off with an even number that would compromise more, etc.. I don’t think I’m sold on it. But maybe you are.

S1: No, no. I’ve seen a government agencies like the not the FCC, but the elections committee. The FCC. Yes. Yes. Which has an even number. And it just the deadlock on everything. They never do anything.

S2: I mean, you could make an argument. We’d be better off with the Supreme Court deciding fewer of these huge social questions. Right. Because they are the least Democratic branch. And you can argue like we should decide more of these things through elected legislatures or even through ballot initiatives. There is that argument.

S1: Yeah, I think I think John Roberts makes that argument sometimes.

S2: Sometimes Barack Obama actually kind of made that argument, too.

S1: OK, if you could talk to the lay person and tell them, look, I know you’re very focused on Roe versus Wade and you should be and you should be focused on an abortion rights. But consider this because this other area of law is hanging right in the balance. What is that other area?

Advertisement
Advertisement

S2: Well, I guess I’ll give two answers. I mean, there are many answers, but two answers. One in. Involves whether state and local gun regulations are going to be upheld, right, so the Supreme Court in 2010 for the first time said that there is a constitutional right, individual right to bear arms in the Second Amendment, but they compromise. They let most of the state and local gun laws that limit gun ownership stand. There are lots of those laws in many states, especially in blue states, and there is an appetite among the conservative justices, including Kavan on Gorsuch. We know this from opinions they’ve written to strike down those laws. So that’s a space to watch. And I think another really important one is the power of federal agencies for Justice Thomas and Justice Gorsuch. There’s been this real interest in limiting what federal agencies can do. You know, federal agencies are where the experts in the government are. They’re the ones who write all the actual rules and regulations that help keep the air clean, the water clean, help keep food safety. You know, all these different agencies we have the EPA, the FDA, the alphabet soup of them. If the court if the conservatives figure out a way to really limit the power of federal agencies, then you would see a real sea change in how American government works and, you know, a real a kind of constitutional move toward deregulation.

S1: OK, so here’s my last question. When Ruth Bader Ginsburg, when it was the sunset of Barack Obama’s term, there was some talk that maybe Ruth Bader Ginsburg, knowing how all this works, should step down. I mean, she was an octogenarian, still very alert and feisty. And we all saw the documentary, I think, and actually full of life. And it was people were reluctant to say to do so because, you know, how dare you take away the agency from such an important and vital figure. But that was one discussion when it very much looked like she would survive until another Democratic president now that she hasn’t. Should we reconsider that question?

Advertisement
Advertisement

S2: Yes. I mean, look, I think it’s if you think about Justice Ginsburg’s own life work and what she cared about, in particular gender equality, I mean, this was what animated her from the time she was in law school. And maybe earlier she wanted women to have the same opportunities as men. She wanted men to have an expanded scope of possibilities in front of them, too. She wanted the kind of strictures of traditional gender roles to be loosened in America. So when you think about all of that and, you know, also she was a huge champion for voting rights, for the Voting Rights Act, for the notion that making sure that people of color have equal political power and chance to vote in this country, that was a huge motivating force for her and the Shelby County decision in 2013. All of that is at risk now. And so in hindsight, I think it’s clear that it was a mistake that she didn’t leave the court earlier. I wrote a piece and I can’t remember what year it was, but years ago, making the argument that everyone yelling at her to get off the court was not going to work. She was an indomitable spirit. Right. I mean, incredibly strong, determined woman. And that’s how she got to where she was. It also meant, I think, that she made this real mistake of judgment in refusing to leave. And I think you’re right that she bet on Hillary Clinton winning the election. And, of course, that didn’t happen. And so there’s always going to be this kind of an unintended aspect of her legacy that is going to it just it’s going to depend what happens next. Right, in terms of whether the gains that she cared so much about, whether we’re going to get to keep them or not.

Advertisement
Advertisement

S1: The the answer to that was you wrote it in December of 2013. It was called Stop telling Ruth Bader Ginsburg to retire. It’s counterproductive. I’ll read the last graph. The justices could give us the gift of regular turnover themselves by agreeing to adopt voluntary term limits. No constitutional amendment necessary, but that would take the unanimous collective action from a fractured group of nine and perhaps the most personal issues of all, their own work lives. It’s another dream that won’t come true, but at least it makes for better holiday conversation than liberal complaints about Ginsburg’s determination to stay put. I almost want to leave on a more humane note, so why don’t we do that? Do you think her greatest, her greatest legacy is in the laws she wrote what she represented, who she was to other female lawyers and justices? Where will we be and how will we remember her?

S2: I mean, her greatest legacy is just the tremendous strides that women have made. Toward equality, since she was a little girl growing up in Brooklyn, we just live in a different world where, you know, everything isn’t perfect, but women have so many more opportunities. We believe in ourselves so much more, I think collectively than we did then. And that’s what she wanted for us. So her legacy is her granddaughters. It’s all the people who dress up as her and how Halloween. It’s the way she became a feminist icon because she cared so much about that kind of dream and opening those doors for people. One of the things she loved to say about the Supreme Court, you know, when Justice Sotomayor, a Justice Kagan, was nominated, people said, aren’t you so glad that there’s going to be another woman on the court? First, you got to serve with Justice O’Connor, but now she’s gone and now there’ll be two or three. And she said, sure, but I want there to be six. I want them to be seven. Like, she didn’t see the ceiling. There wasn’t to her such a victory to have two or three people. She thought that women should be represented on the court in a majority, just like men had been for so long. That was her sense of where she wanted the world to go. And I think that for so many women, she was an inspiration because she just had such a deep seeded conviction that we could do all those things and that it was fair to ask.

S1: Emily Bazelon is a staff writer at the New York Times Magazine. Her other affiliations include Yale Law School and Slate’s political gabfest. Thank you so much, Emily. Thanks, Mike.