Remembering Justice Ginsburg

important principles of equality for men and women. She then became a federal judge and a Supreme Court justice, and then towards the end of her time on the bench, she became something more than that. She became a national celebrity, the stop called Notorious RBG here to discuss Ginsberg's life and her legacy, particularly her legacy as a jury. We're joined by Richard Primus. Richard is a professor of constitutional law at the University of Michigan. He clerked for Justice

Ginsburg in the nineteen ninety nine Supreme Court term. Richard is also the person with whom my education and constitutional law has been most closely entangled. He and I first met on our very first day of freshman year. We studied constitutional law together in college. We talked about it constantly when we were together in Oxford. We talked about it further when we went to law school together, and now we're in the same profession and we continue to

speak about the Constitution of its development. There's nobody who's influenced me more, there's no one who might trust more, and there's no one with whom I thought it would be more appropriate to discuss Justice Ginsburg and the Constitution. Richard, thank you so much for joining me. Let's start with how you met Justice Ginsburg for the first time, which I think must have been when you went to interview to be her lot clerk. It was. It was in

the fall of nineteen ninety seven. I was a thirty year law student and I had been told that she was taking applications for two years out the year that I would have been eligible to clerk. And I sent in materials and I was in my apartment in New Haven and the phone rang and a woman identified herself as calling from Justice Ginsburg's chambers and said she wanted to speak to me. That I say that the Justice wanted to speak to me. Could I be available a

couple of days later? And I thought, yes, yes I could, And I hopped on a train and I went down to DC, and I remember going in and the marshals taking me to her chambers and meeting her clerks who interviewed me, and then I was told the Justice would see me, and I walked into her own private and I was looking at one of the biggest office rooms I had ever seen, and one of the smallest people

I had ever seen inhabiting such an office. And she had a very very big smile from behind some very very big glasses, and it felt warm, it felt welcoming, and I'd never met her before, and she was the most powerful person I'd ever met, but she made me feel that she was glad to see me. And we

sat down and we talked for maybe twenty minutes. She was well prepared, she had read materials that I had submitted, and at the end of the time she said, you know, with no fanfare, you know, as if she was saying, you know, don't forget your umbrella. On the way out, she said, well, i'd certainly like here. I noticed that my voice slows down as I recall what she said, because she was very famously very slow. I'm a slow speaker, and she was a full tick slower than I am.

She said, well, if if it will work for you, I'd be very happy to have you here clerk for me. And I thought, yes, yes, that would work for me a great deal. And she shook my hand and gave me a little hugg and sent me on my way. And about a year and a half later I moved down to DC to start the job. Can I ask you about the rhythm of that conversation. I mean you mentioned that Justice Kinsburg spoke slowly. That's a substantial understatement. I mean, I'm a fast talker and how a slow talker,

so maybe for me the difference felt even greater. But I my experience of her was that I had never met anybody who spoke with such long pauses between things that she said. So how did the rhythm of the conversation go? Because you're also a very rhythmic conversationalist, So the rhythm of the conversation was slow, as were all

subsequent conversations I ever had with her. One of the clerks who talks to me before I went and gave me a piece of advice that I found very useful, in which I then passed on to other people who met the Justice later. He said, I tried to work myself into a sort of zen state before I talk with the justice, slow way down and take what comes as it comes and wait in that conversation. I practiced that, and then in sensimen conversations, you know, slow your breath down. Wait.

If she pauses, it doesn't necessarily mean she's done. It usually just means she's thinking. Give yourself, you know, sort of like a full for Mississippi count after she's done, to conclude that she's finished, and then answer what was that about? Why was Justice Ginsburg's speech style so remarkable so unusual? I mean, you said she was thinking, and there's no question that she was thinking, But she was an extraordinarily brilliant woman and intellectually speaking extremely quick, so

I can't that can't be a complete explaination. There was some other thing going on there. What do you think it was. It's true she had a very quick mind, very quick you know, she would see four different things happening all at the same time. But it's a mistake to think that people who do that also don't get something out of pausing and thinking. Yet more, I think that's undervalued. I do think that was happening, but I think you're right, it's more than that, And I associate

it with two things. And it's very hard for me to know how much there's real causality here and how much this is a just so story that I would be telling as a matter of associations. But I'll give these two associations. The first is Justice Ginsberg was extremely careful in all of her work. She could see the

answer to a legal problem very fast. But it's one thing to see the answer to the legal problem very fast, and another to say Okay, done with that, you know, like not thinking about it more right, moving on, and another thing to say, Okay, I've seen it. Now I'm going to make super sure. I'm going to stress test it four or five different ways. I'm going to set it aside and come back to it to make sure. Justice Ginsberg was very much in the latter category. As

a matter of working practices. She worked very hard, long hours every day for her whole professional life, as far as I know, And part of that was just a matter of industry and get anything that's done, But part

of it was being extremely thorough and careful. And I've always associated that with a fact about gender and the Justice's professional life, which is that she came of age as a prominent woman at a time when women knew that if they were going to be thought to be as good at what they were doing as the men around them, they had to perform flawlessly, where you know

the man next to her only had to perform. Well, you've got to do it cleaner and better, and no mistakes, because if you make a mistake, you know the men around you will as a matter of confirmation bias. See, Oh, well she makes mistakes, right, She's not really up to it.

So she did not want to make mistakes. And I think that whether that caused her to slow down, or whether she naturally was a person who worked very, very carefully and therefore she was able to do what was necessary, I don't know, right, but I think one of those. The other is a personality matter that I think is something that most people missed about the justice that took me several months of working with her to figure it out.

I think she was a very shy person. I realized only several months into my clerkship that so many of her behaviors lined up with that, and I think it took me a long time to realize because she was the most powerful person I knew you, like she was in charge. You know, like what did she have to be shy about? And late in her life after the celebrity took over, you know, like, certainly people don't think of that, but I think she was a shy person. And I think she was a shy person who worked

and overcame the shyness. But I think it accounted for the slow manner. I think that's completely right. And I actually think that a different narrative could have been constructed for her as somebody who really overcame with great effort a really powerful shyness that could otherwise in another person,

have been genuinely debilitating. I do think that once the cult of the Notorious RBG was created, there was no convenient place for that narrative to be put in, and I think it was just read out of the documentaries and out of the myth making that surrounded her. And I want to ask you actually about that phase of RBG myth making that corresponded in time, strangely enough to the period of time when some court insiders were urging

her to consider stepping down. Tell me how you, as her clerk thought about this cultification, and especially its relationship to the very delicate question which was being raised in public in print by at least some people as early as the very beginning of President Obama's second term of whether once it was known publicly that she had been diagnosed with several kinds of cancer, she should consider stepping down so that the president could appoint someone liberal to

replace her. So I sometimes feel that I knew Justice Ginsburg before she was famous, by which I mean when she was merely a justice of the Supreme Court, right yep, famous to us, but not necessarily to the whole world. That's a lot of fame for when life time to be a Supreme Court justice, but not like it was later. She was famous, but she wasn't a celebrity exactly right, that's the difference. In fact, we can go even one

step further. Justice Ginsburg is on the short list of justices through all of history who would have been major figures in American law even if she had never sat on the Court. She already had that plus being a justice. And yet the notorious RBG thing took it to a different level. In fact, just a suitor in his very brief publicly released statement that the Supreme Court released said she was one of the very few justices who achieved greatness before joining the court. Yeah, I think that's true.

Pretty much, all Supreme Court justices are figures in American legal history simply by virtue of having been Supreme Court justices, but most of them are not major figures after the passage of a little bit of time. There's a shortish list of people who are major figures after the passage of the little time, and there's a shortish list of people who would have been major figures had they not sat on the court. So Thurgood Marshall, Louis Brandeis Joseph's story,

Oliver Wendell Holmes. I'm not sure we could get to ten, and I really doubt we could get to sixteen or seventeen. She's on that list right because of the career she had and the impact that she had before she came to the court, and yet the turn that the notorious RBG took took it to an entirely different level. I

had reservations about that development. I felt a little bit bad about my reservations because I had great respect for an affection for the justice, and there was a simple way in which it was good for her, and she was enjoying it, and it was useful in some ways also for things that she represented. And it happened also in the wake of her husband's death, and she was incredibly close to Marty, her husband. He was a life force, and I think that that did something for her also.

So for all those reasons, it felt to me a little bit churlish to have reservations, But I had reservations. I had reservations, first of all, because I don't like cults of personality. Even when the people around whom they center are people you know, who I like a lot and admire and share values with, I still don't like cults of personality. I think they can go bad places, and I think they can affect the judgment and the self awareness of the person at the center of the cult.

And I worried about that. I was someone who worried for a long time that the justice would stay too long. Not sometimes you talk about a judge staying too long, what you mean is they can't do the work anymore. I was worried about that. You know, I was in touch with the justice, including about some legal things a few times over the past year or two, and she was just as sharp there as she had ever been.

But I worried about her staying too long as a legacy matter, because we live in an age, really quite unfortunately when the populating of the Supreme Court is a highly ideological thing that fought out at the most titanic levels of American politics, and I had a fear for the fate of her legacy that ran along the following lines.

People always used to say that she was the Thurgood Marshal of the women's movement, and in a way that was really apt description, and my fear was that it would be only too true in the end, because maybe the single most consequential decision for the path of American law that Thurgood Marshal ever made was not to retire during the Carter administration when there were people who said he should, And as a result of his not retiring

during the Carter administration, when his seat was eventually filled, it was by Clarence Thomas. And the difference over these last thirty years between Clarence Thomas on the Supreme Court and someone who Jimmy Carter might have appointed has been a really big difference in American law. And it's particularly bitter because you know, Thurgood Marshal, you know, it was

giants of American law. If anyone gave his life successfully to making America a better place through the law, you know, like, how can Thurgood Marshal not beyond the shortest of lists? And yet formal Jim Crow in the South would have ended with or without Thurgood Marshall. It might have taken a little bit longer. It might have happened a little

bit differently. There would have been more suffering, unjustly of African Americans, you know, for for like some number of incremental years in the meantime right, not to diminish any of that, but its days were numbered. You know, there were larger forces in play, and it would have ended with or without him. The decision about when to retire, like didn't have to be that way. That could have been different. And similarly, you know, I worried that Justice

Ginsberg would retread that path. She was a very important figure in the coming of sex equality in the law, but she also had the self awareness to know that it would have happened without her. I mean, she said so to me directly, she said, And I'm sure she didn't only say to me. She said, mostly I was born at the right time. A generation came where the law of sex equality was going to have to change.

And exactly who would change it and exactly how was a matter of contingencies like who's around and who steps up.

And if it had not been Ruth Bader Ginsburg, maybe it would have taken a little bit longer, and maybe it would have happened a little bit differently, but the big arc of history on that issue would have looked more or less like it looks the decision not to retire during the Obama administration, more particularly during the Obama station, when there was a Democratic Senate mainly very large for a long time in the development of a lot of things in American law. In a moment, will transition to

talking about the trajectory of where we're going. But before we do, one of the things that constitution law offreessors like you and like me try to do is that we try to figure out the legacy of justices of the Supreme Court. And I don't think it's too soon to start asking that question about Justice Ginsburg. So let me start by asking you what is your understanding of the long term contributions that Justice Ginsburg made the constitutional

law when she was a justice. You've mentioned already, and it's hugely significant that she, unlike most other justices except maybe three good Marshal, played a big role in the formation of constitutional law before she was a justice. But I'm talking about after she was appointed by a Bill Clinton to the Supreme Court. What do you see as signal contributions. So I think her signal contributions from a technical legal perspective are going to be things from descents

that will get remembered and used. I think particularly of a very apt thing that she said in descent in Shelby County versus Holder, which was the case in which the Supreme Court gutted the Voting Rights Act, where to sum up, the majority of the Supreme Court said, this is not the nineteen sixties anymore. The kinds of racial discrimination that were endemic at the time are no longer with us. The extraordinary measures of the Voting Rights Act

here are no longer necessary. And Justice Ginsberg wrote, that's a little bit like throwing away your umbrella in a rainstorm because you're not getting wet right, her point being the reason that we don't see all sorts of horrible forms of race based voter quesion is that we have the Voting Rights Act. And I was confident at the time that she was right, and I am yet more confident now. How could I not be that she was right? And so I think that warning you will be something

that constitutional lawyers, you know, will continue to hear. We'll be back in a moment. Let me ask you, Richard, about the opinion on gender equality or on sex equality that was the most significant one written by Justice Ginsburgh when she was on the Court, and that was the VMI case involving the Virginia Military Academy, an all male military academy run by the State of Virginia. Tell me about her opinion there and what you think was interesting

and significant about it. So this was a case in which the Supreme Court decided seven to one, Justice Scalia dissenting and Justice Amis not participating, that the State of Virginia could not maintain VMI as an all male institution. VMI it was like a military academy that played a very large role in the aristocracy right, social, political, and economic of the State of Virginia, right like, if you graduated from VMI, you were a real Virginia insider in

a very thick and powerful network of Virginia insiders. And it drew out of a particular aristocratic tradition that fits with all those things. The question, of course, was whether VMI could continue to do that, given that it was a public institution and therefore bound by the Fourteenth Amendment

and Equal Protection Clause. And after the nineteen seventies, when the Supreme Court began to say that the Equal Protection Clause meant, among other things, that states can't discriminate however they want on the basis of sex, this was a real question. The thing that I think of as most instructive about Justice Ginsburg's opinion in the case, it was just how simple it is. Virginia had attempted to escape the need to integrate VMI by creating a different institution

called Mary Baldwin College. The idea was it was going to be like VMI for women, and it is equal but separate, you know, which once upon a time was acceptable doctrine in the Supreme Court on race issues. And the question was would it be especially equal and therefore acceptable doctrine here on this sex issue. And one of the things that in the end was the undoing of separate but equal in the race context was the understanding

that it wasn't really equal. That is to say that the black schools were not as well funded and not as well resourced in other ways, did not provide the same level of education as the white schools. It was

just farcical to pretend otherwise. Right. The Great Charles Black, great constitutional law professor of his generation and a Texan all of his days, famously wrote that when people insist on the idea that the schools are in fact equal, he could only deploy the sovereign progative of philosophers, which was laughter and justice. Ginsberg said essentially the same thing about Virginia's attempt to dodge in this case. She said,

nobody would ever confuse VMI with Mary Baldwin College. No insult to Mary Baldwin College, but it doesn't provide access to the same kinds of shared experiences and networks of power that coming through VMI does, and that means it can't possibly be delivering equality to the people who go there. And here I want to say something. I will tell a short anecdote about a wonderful thing that a student of mine said once when I was teaching this case.

The first line of the opinion that Justice Ginsburg wrote says, I'm not going to be able to put it exactly from memory, but more or less, it says that Virginia maintains an incomparable institution of higher learning, the Virginia Military Institute. And I was teaching this case several years after it was decided, and I asked the students, at what point in the opinion is this case over? How far do you have to read to know how this case is

coming out? And what I had in mind was I want the student to say, well, in the first sentence, VMI is described as incomparable. The word incomparable is all you need to know. If it's I mean, it's a compliment to VMI. But if it's incomparable, it's not equal to some other thing. So that's what I was looking for. And the student smiled and said to me in full voice, this case is over when it says Justice Ginsberg delivered the opinion of the court right, which is of course

the sentence before. And I had to talk because, because of course that's true, and it's true, not just a true way, but been in a deep way. Right in the world where Ruth Bader Ginsburg can be appointed and confirmed to the Supreme Court, the world where there can be single sex institutions of power run by states for which we make an accept excuses is no longer the

operative legal world. There is a theme that runs through that opinion, and especially the parts that are responsive to Justice Galia's descent, about whether it's appropriate to think about institutions as changing after they are made open to both men and women. And this is connected to the brand of feminism that Justice Ginsburg espoused, which is sometimes called

sameness feminism. In some ways, it's distinct from a slightly later conception of feminism, according to which women bring distinct experiences, distinct social attitudes, perhaps distinct viewpoints to a whole set of institutions and problems in the world. That's not how Justice Ginsburg thought, It's not how she road, and it's not at all reflected in that opinion. She has no time for the idea that introducing women to VMI will change the hazing what the case I think calls the

aversive method of education. To her women can do whatever men can do, including get nailed out in the face and yell at others in the yes, yes, including the adversitive method. Because the argument was simply for equality of the sexes. It's as simple as that if men, then women. Women can be astronauts and basketball players and chemists just like men. That is all. It was not a claim that society needed to be remade in some other way than the inclusion of women on equal terms with men

in the existing structures. I don't want that to sound more limited than it is. And in two ways, when first she did understand that some things about institutions had to change if women were going to be in them. When she was first on the Columbia law faculty, there was no women's bathroom, So like, that's got to change.

And I should also say, we take so much of the success of that wave of the women's movement, for granted, from the perspective of nineteen thirty, the perspective of justice Ginsburg's childhood, the idea that you could achieve that kind of sameness equality was enormously heavy lift. You know, in the annals of human history, it is hard to identify movements for human liberation, equality, dignity that did more, faster,

more successfully than that move. And yet it is also the case that by the time I knew her at the end of the nineties, most feminist thinkers of the younger generation had moved past that they were thinking in terms of differences between men and women. They were thinking in terms of more thorough going kinds of social change. They were more inclined to say things like, the fact that VMI has not been hospitable for women indicates that there's something wrong with an institution like VMI in the

way that it does things. And if VMI can't survive with women in it, then maybe it's okay that VMI doesn't survive. Maybe that's a kind of progress rather than thinking the goal is simply equality within the existing world

of institutions. But again, I want to say, though her perspective is certainly limited in this respect from the perspective of the generations that came after her, we should not underestimate the achievements that was entailed in making her perspective successful enough so as to seem like a thing that we needed to move beyond. Last question, Richard, A lot is about to happen and it's going to be very complicated.

Any thoughts on how Justice Ginsburg's own legacy and own views should inform the way we think and talk in the difficult days that are coming, I wish they would. I think that the horrible circus that attends all changes of personnel at the Supreme Court in our days is

a bad thing for the Republic. It's a symptom and a cause of bad things about our legal system and our constitutional system, starting with the fact that the Supreme Court is such a symbolically salient institution that gets people very, very exercised, and the fact that the justices are you know, we treat them as titled nobility in in a mystical way,

we treat them as vicars of the Constitution. America is, you know, officially anyway, and maybe even reality, it's not a country founded on our common ancestry or you know, a set of thick ethnic traditions. Of America at its best and maybe in reality is an idea, but it's not exactly the same idea of for everyone, and for most of us, the idea is linked deeply with the Constitution as we understand it, and the Supreme Court justices

I think it's a very unfortunate thing. Supreme Court justices in our generation go through the world as the Constitution made flesh, and that means that the conflict over who they're going to be is just so deeply intense in a way that exceeds the practical stakes of who controls the court, and those practical states are too high already. It's why I wish we had a system in which Supreme Court justice is rotated out of office on a regular schedule, rather than just by happenstance of death or

a choice of retirement. Right. I think we'd be much better off. But given that we are where we are, I wish very much, even for reasons that I hadn't before, that the Republican Senate had confirmed Merrick Garland in twenty sixteen. Here's an alternative historical story for you. The Republican Senate says, Okay, our party controlled the Supreme Court for a very long time. One of the teachers of constitutional democracy is eventually you

have to take turns. And President Obama would have appointed Garland, and there would have been a small Democratic majority on the Sutreame Court. It would have come at a really good time right, the Trump administration would have been really an excellent time to have a small Democratic majority on

the Supreme Court. A bunch of things about how the courts have handled the Trump administration or failed to handle the Trump administration would have gone down a little bit differently, And I don't think they would have gone down on

a strictly partisan way. If there have been five votes against the Trump administration and your Trump versus Hawaii, the travel band case, or in a bunch of other cases that we can think of, I bet there would have been six or seven votes, and those things could have

gone better. And then if everything else day is the same, and we imagine Justice Ginsburg dies at the end of the summer of twenty twenty and is replaced by Republican appointee, then there's much less reason for Democrats to feel that they've been cheated over and over again, like we got ours and you got yours, and like, you know, those

are the rules who playground basketball. And now four years later we are where we were with a five four Republican majority on the Court, which is to say the world of conservative lawyers would still have been ideologically much more in the driver's seat in the Supreme Court than the liberals right. But for this short interlude, we would have gotten there without a lot of pain and a lot of recrimination that I fear is only going to

get worse over the next several weeks. Richard, Thank you for sharing your experiences and your thoughts about Justice Ruth Bader Ginsburg with me. Thank you more deeply for the literally thousands of conversations that you and I have had about constitutional law over the years, and I look forward to having more of them with you, some of them here on deep background. Thanks for joining me. No, I'm

delighted to have been here. I am grateful for the law relationship that we've maintained in thinking about the law. Hearing Richard talk about Justice Ginsburg's legacy is a powerful reminder of what the law can do and of what our Constitution can do when rightly interpreted. Justice Ginsburg's life was entwined with the struggle to create equality via the

guarantees of the law and the Constitution. She became, while serving as a Supreme Court justice, one of the keepers of the constitutional flame, and in that role she not only made profound contributions, she also simultaneously assumed a national status that enabled her to inspire a whole new generation

of young people, especially young women. That said, Richard also hinted that the cult of personality that began to grow up around Justice Ginsburg towards the end of her career may not have been altogether positive, and he expressed a worry, a worry that I share that it's possible that Justice Ginsburg's choice to remain on the Supreme Court and her untimely death while Donald Trump was president and the Senate was controlled by Republicans might turn out to have very

troubling long term consequences for the Supreme Court and hence for the Constitution itself. We will continue to cover the story of what happens in the aftermath of Justice Ginsburg's death, but for now, what's appropriate is for us to mourn her, to appreciate her legacy, and to value the tremendous contribution that she made to human equality here in the United States. Until the next time I speak to you, be careful, be safe, and be well. Deep background is brought to

you by Pushkin Industries. Our producer is Lydia Jean Cott, our engineer is Martine Gonzales, and our showrunner is Sophie mckibbon. Theme music by Luis GERA special thanks to the Pushkin Brass, Malcolm Clodwell, Jacob Weisberg, and Mia Lobel. I'm Noah Feldman. You can find me on Twitter at Noah R. Feldman. I also have a new book out called The Arab Winter, A Tragedy. I'd be delighted if you checked it out. I write a column from Bloomberg Opinion, which you can

find at bloomberg dot com slash Feldman. To discover Bloomberg's original state of podcasts, go to Bloomberg dot com slash podcasts and if you like what you heard today, please write a review or tell a friend. This is deep background