Harry Litman [00:00:07]: Welcome to a special episode of Talking Feds Now, a round table and partnership with the Los Angeles times studio. I'm Harry Litman. In this episode we’ll be talking with some very prominent sisters in law, all of them who served as clerks with Ruth Bader Ginsburg. Today is the kind of day when you wake up and your first thought is, did I have a terrible dream or did that really happen? Well, it really happened a day many on the left have been dreading and probably some in the president's flailing campaign had hoped for. Ruth Bader Ginsburg, icon, professor, country-changing advocate, luminary for 40 years on the DC circuit and the Supreme court and improbable hipster hero died yesterday from pancreatic cancer.
The news played immediately as a political hurricane with possible game-changing impact on the presidential election. But we're not here today to engage in any of the political chattering. Our goal is rather to focus on the trailblazer, counselor, visionary, friends, spouse and mother that Justice Ruth Bader Ginsburg was in an 87 year life that saw huge changes in the world, several of which she helped propel. And to do that we have three of the people who had the good fortune to serve as her clerks and probably during their years to spend more time with her in chambers than anyone else, save her family. They are Ginger Anders, a clerk in 2004, 2005, and now a partner in the Washington DC office of Munger Tolles and Olson.
Ginger's a former assistant to the U.S. Solicitor General and a deputy assistant attorney general in the Office of Legal Counsel, and she has argued 18 cases before the U.S. Supreme court. Ginger. Thanks for being here.
Ginger Anders [00:02:06]: Thank you.
Harry Litman [00:02:08]: Gillian Metzger, clerk in 1997 and 98, and now the Harlan Fiske Stone professor of constitutional law at the Columbia Law School.
Gillian is a co-editor of Gellhorn and Byse’s Administrative Law, seminal administrative law case book, and The Healthcare Case: the Supreme Court's Decision and its Implications. Gillian. Welcome.
Gillian Metzger [00:02:30]: Thank you.
Harry Litman [00:02:31]: And finally, Amanda Tyler. A Ginsburg clerk in 1999, 2000. And now the Shannon Cecil Turner professor of law at the University of California Berkeley School of Law.
She's the author of Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay and a co-editor of Hart and Wechsler's The Federal Courts and the Federal System, the book that is as close as anything to a bible for Supreme Court practice. Amanda, thanks so much for joining Talking Feds.
Amanda Tyler [00:03:01]: Thanks for having me.
Harry Litman [00:03:02]: All right. So, you know, very hard, I know, to try to capture a person in 40 minutes or so, but let's try to do our best. I wanted to start with something that I think you all know very well, but the public, not so much. And that was justice Ginsburg’s personal manner. In my few meetings with her, she came across as extremely diffident, soft-spoken maybe shy, maybe painfully shy. Others have remarked on the silences that you had to get used to. So first, you know, do you know what I mean? And second, was it like that for you throughout the year, as you came to know each other better?
Gillian Metzger [00:03:38]: I'd have to say, I don't think she was shy. She was very deliberate and so every word. Not just written, but spoken was pretty carefully chosen. And so there was sometimes a slowness in that sense or some gaps, as she thought about what she wanted to say, but what you came to realize was that during those periods of gaps, she was fully thinking about what she wanted to say and it was, it wasn't at all a lull. It was, the mind was worrying behind the silence.
Ginger Anders [00:04:10]: Yeah, she was such a fantastic editor of opinions in such a careful and persistent editor. And I always felt like those pauses were pauses in which she was doing, the same thing to her spoken words that she would be doing to her writing, you know, she'd be going over it and taking out the unnecessary words and just making sure that she had exactly the right word. So, you know, the joke was that you had to count to five, when you thought she was done, you'd count to five and then you'd speak, but it was that editing process I think.
Amanda Tyler [00:04:39]: I think everything that's just been said is spot on the only thing that I would add is that if you could get her to talk about opera, she would become incredibly animated. She loved opera and she would just come alive in talking about her favorite opera. It was such a wonderful thing to see.
Harry Litman [00:05:03]: That's great. But following up on what Ginger said, her as this punctilious and very, very precise editor. I know at least early in her career, when I had a sense of it, her relationship with clerks was quite paper driven. They would slip drafts under her door, her closed door, and they would come back in a, especially early in the term, a very edited fashion. Is that the way that it worked when you were clerking for her?
Ginger Anders [00:05:35]: It was. You would complete a draft and you'd leave it in this box by her door and then she'd, she'd edit it, usually in pencil. She would, she had this perfect cursive. And so it would come back, you know, with things lightly crossed out and, and, and the cursive written over it.
But then she'd sit down with you and she'd explained to you almost word by word, why she had changed each thing and it would be, you know, everything from, you know, switching passive voice to active voice, to, you know, some, some major legal point in the opinion, but, you know, she would go over it in great detail.
Gillian Metzger [00:06:09]: I mean, I, I don't know if Amanda and Ginger had this experience, but after you clerked for Justice Ginsburg, I think you kind of carry a little RBG on your shoulder when you're writing and you know, and you'll write a clause and you'll look at it and think, well, that's an unnecessary word. That one could go. Really we need some additional comments here to set off that clause. And then you, you see the influence that she has had over time.
Amanda Tyler [00:06:35]: And you, you also picking up on that, absolutely. She lives on in your ear, on your shoulder, wherever it is whispering, telling you ‘No, no, no. Be better. You can do better.’ But you also look for great first lines to grab your reader. You look for places where you can use really great words like pathmarking, which was one of her favorites.
Harry Litman [00:06:59]: Separated by five years, but same word, I see.
Ginger Anders [00:07:01]: Yeah. Oh yeah.
Amanda Tyler [00:07:02]: Yeah. That was a favorite.
Ginger Anders [00:07:05]: Yeah. Every time I use it, I think of her. I smile a little bit because I think of her. I try to put it into briefs if I can.
Harry Litman [00:07:11]: Did you, when you met with her and she was explaining, was it always one-on-one? Were there one-on-four meetings? And I guess relatedly, what was her process in advance and how did it employ clerks if at all, for working through especially tough cases and knowing just where she wanted to be?
Gillian Metzger [00:07:31]: No, I think this may have changed a little bit over time, so I'm particularly, I think I was the oldest clerk. When I was there, we did our individual bench memos and then worked with her on a draft. We didn't have much collaboration among the clerks with everybody reading the bench memos or reading the opinions before you submitted them, which I think is something that developed over time. And so the process was really more of a clerk for a case. Although sometimes she might bring in another clerk on a particular case or change it over over the course of it.
Harry Litman [00:08:08]: I mean, just for a discussion or a devil's advocate position or whatever.
Gillian Metzger [00:08:11]: My memory is of mainly working off of paper. So, you know, you wrote a bench memo on the case, and then you'd engage with her over that, or you'd write, worked on a draft opinion and you'd engage over that. Or the opinion came from another chambers and you read it through and you had comments on that. I don't remember as many, kind of, jam sessions just thinking through the ideas. That's, that's not so much my memory.
Amanda Tyler [00:08:35]: I think I had a very similar experience to Gillian our year, a few years after Gillian's. It was usually one clerk to a case, although occasionally she would bring in another clerk and we did also talk primarily based on drafts. I do remember fondly though, one of my very favorite memories and, in this context, of my clerkship, happened in a case in which I had written a very lengthy bench memo. I really thought the answer should be X and she thought the answer should be Y. And she read my memo on a weekend, so she called me on the phone to talk about it. And we talked for a good two hours about it. It took me that long. And so I'm a little slow to realize that what she really wanted was for me to say, ‘Oh, I think actually you're right, Justice.’ But I refused, I refused to back down and I kept, you know, engaging with her in part, because it was so fun, so much fun just to intellectually spar with her in an, obviously, super respectful way, but in a really deep dive kind of way. And I didn't want the phone call to end until eventually I was like, you know, I'm getting a little tired and I think she's tired. And so finally, I said, ‘you know, boss, you're the justice, so if that's what you want, that's what I’ll write.’
Ginger Anders [00:09:57]: Yeah I think my sense of her was that she, you know, she had very strong instincts about what she wanted to do with every case. So a bench memo could help her by boiling down the issues and maybe confirming what she already thought or raising questions for her. But, you know, she was really someone who already came to it with a definite view.
And she would use the clerks to help her sort of work through things. But, you know, we didn't have those jam sessions, maybe in part because she often knew what she thought.
Harry Litman [00:10:25]: You know, following up on Amanda's point, she is being lionized as a great liberal, and of course she did vote with the, the four in most big cases. And maybe this is a reflection of the Liberty or the, you know, the greater latitude one has a Supreme court justice. When I clerked, she was on the DC circuit and she actually had the reputation, I clerked for Mikva, so one of the more liberal judges. She had a reputation of being much more centrist is one way to put it, but it was really sort of punctilious or proceduralist. So, you know, she would work through things carefully, like a Civ Pro teacher might, and sometimes it would cause her to be on the side of a Bork opinion or a Scalia opinion. And I think the extolling or just the recognition of her as a kind of liberal giant on the court and the focus on some of her dissents doesn't fully capture the whole picture of someone dedicated to the law and where the law takes you in very precise steps.
Gillian Metzger [00:11:37]: I mean, I think that's, I think that's right. Among the clerks you'll realize that if there was a kind of obscure civil procedure case, she would go for that one. And it was really fun to work on those because those cases really had that aspect that remained something that she really cared a lot about.
And I think she really sort of developed a jurisprudence there. I do think that if you look at her jurisprudence over time, I don't think it ever lost its care. I think when I think of her, her writing of opinions, it always had that same degree of care. There is a voice that is consistent throughout.
I do think that over time as the court moved more to the right, she was more assertive in some ways about insisting that the court recognized that it was ignoring what equality and justice required, and that it was doing so also by just not paying attention to the world like that, you'd get these broad statements that, that just didn't connect to the lived reality. And that was what I think she started to quite powerfully articulate in dissents and that's, I think, why they were so powerful and took on the meaning that they have.
Amanda Tyler [00:12:47]: Yeah. If I could pick up on what Gillian just said, you know, as I think back about her jurisprudence, what stands out is that this is someone who very powerfully understood that the law impacts the everyday lives of Americans. And she often understood very acutely how, and there are so many examples I could give, the Ledbetter case where she says to the majority, you just don't understand how pay discrimination works for the working class. How is this woman supposed to have found out that she was being systematically paid less than her male peers for so long? In Hobby Lobby when she writes about how the majority, the all male majority doesn't understand that working class women are not going to be able to afford contraception if you make it easier for employers to opt out of the contraceptive mandate. So she had a real appreciation for how things affected people on the ground. I'm reminded of a conversation that she and I had at UC Berkeley last fall in which we were talking about Goesaert and Cleary, this old case decided, uh, I think in 1948, about a Michigan law that banned women from bartending and waiting tables at night under most circumstances. And as she talked with me about the case, she said, ‘You know, the problem is, of course, at night is when you get the best tips.’ So she really, you know, she really understood, I love that example because that's right! And only somebody from a working class background would know that. And so she really had this rich appreciation that although we were debating high level law, it had very serious ramifications on the ground. And so when you read her opinions, you read a voice for the lived experiences of a very broad spectrum of our society.
Ginger Anders [00:14:50]: You know, I think when we were all clerking, she was a relatively junior member of the court and of the liberal wing, and she always respected Justice Stevens so much. Uh, he was the, the most senior member of the liberal side at that time. And, and there was a real sense in which he was a leader. And so I think, you know, one of the things that we got to see occur in the past 10 years or so after Justin Stevens retired was that she really took on that mantle, right, and became the leader of the, of the liberals and, you know, started writing those big dissents. Right. And I think really felt it very deeply that, that, you know, she had responsibility for voicing something unified on behalf of the four of them.
Harry Litman [00:15:29]: I had the sense, it took me by surprise at the time of fantastic admiration for Justice O'Connor and a certain loneliness when O'Connor stepped down and she, you know, felt herself a lone woman's voice was— Ginger, did you clerk after O'Connor left? But the other two, when she was there?
Ginger Anders [00:15:48]: So I was, I clerked during justice O'Connor's last year. So actually she announced her retirement, I think within the last weeks of our clerkship. And there was really, it was really emotional in chambers. Justice Ginsburg was very, very moved by it. It, I think, took her by surprise and it took all of us by surprise and she seemed to feel it really, really deeply.
Amanda Tyler [00:16:11]: She told me that when O'Connor left and she, and she said this publicly when, uh, she was the only woman on the court, that that was really hard. She was, she really didn't like that. And I think probably because she felt, like many of us observed and felt too, like we were going backward. So she was ecstatic with the appointments of Justice Sotomayor and Justice Kagan.
Gillian Metzger [00:16:37]: I mean, I think she also, there were some cases where if you think about the Redding case of the 13 year old girl who was being strip searched and she later said that, that her male colleagues just didn't understand that it was different for a 13 year old girl to have to take, be strip searched at that age than it was for a 13 year old boy, they were sort of a little bit question of, ‘well, you know, I remember when I was young in the locker room’ and she intervened very forcefully. I think she felt they just didn't get it.
Harry Litman [00:17:07]: I heard her once talk about, you know, in very straightforward terms about, her equality jurisprudence was carefully mapped and the like, but she just said, I, you know, I didn't understand why he should have one job while she has two. It was very basic about couples’ lives. I want to ask you about that because there's a lot of comparisons now being drawn with Justice Marshall for whom I clerked, about her earlier life as a really, you know, trailblazing advocate. We would occasionally on very, very lucky days get regaled by, uh, Justice Marshall with some account of that. Was that a part of her life anymore? And did it ever sort of come out when, you know, the feet were up or it was late in the afternoon in the court, were you aware of her previous life as an advocate?
Gillian Metzger [00:18:01]: Oh definitely aware.
Harry Litman [00:18:04]: I mean did she discuss it, I should say.
Gillian Metzger [00:18:09]: I think it, it came up once or twice and were, uh, my memory is that, you know, she's always asked to give speeches and many of those speeches, you know, when you're a justice, there's a limited number of topics that you can safely talk about. And that was one of the topics that she had, that she could of course talk about.
And so, in that context and in talking about speeches and stuff like that, it would, it would sometimes come up. Another one in that vein, that I remember working on my first assignment as a clerk, was a speech about the wives of the justices, another safe topic for a justice to talk about.
Ginger Anders [00:18:46]: Yeah it’s funny because, you know, in recent years she’s become such a pop culture icon, but for that, for her advocacy for women's rights. And of course we were all aware of it, that's why we wanted to clerk for her. You know, where you kind of worshiped her for those reasons, but she never talked about it in chambers.
You know, she was such a quiet and diligent person. It really just felt like she had, you know, she had had these tremendous achievements, but, you know, she was here everyday to do the work that was on her desk. And, you know, she was going to persist in doing that work and making every single opinion just perfect.
And I don't know, it's one of the things I admire her most for I think, you know, looking back. Just that sense of, you know, you show up every day, you do your best and you know, it, wasn't about sort of, you know, telling war stories or resting on her previous accomplishments.
Harry Litman [00:19:35]: Let's talk about this notorious RBG stuff.
I can claim a very small role in the phenomenon because I'm quite good friends with the filmmaker, Julie Cohen and I made the first overture to Justice Ginsburg to maybe speak with her and vouch for Julie, which to my surprise, she accepted. But, you know, it must have both perplexed and delighted her. What was your sense of her reaction to becoming, you know, this pop culture icon for the hip hop class, for gen Z or whatever it was. Kind of an improbable development.
Gillian Metzger [00:20:17]: I think she was thrilled. I got to say, I mean, you know, I think she thoroughly, thoroughly enjoyed it. I remember she came to Columbia for a talk in 2018 and she had her notorious RBG bag that she was carrying around. I do have to confess that if I were going to make predictions from my clerkship, what was going to happen, this was not one of them. Really was not top of my list.
Amanda Tyler [00:20:45]: Yeah. She joked about how ‘everyone wants to take their picture with me.’ And she didn't understand it.
Harry Litman [00:20:51]: This was when she was at Berkeley about a year ago, visiting you?
Amanda Tyler [00:20:55]: Yeah. Yeah. I think she even, they have a clip of her saying that in the documentary, but, uh, you know what I loved about it—and we see the outpouring, the just overwhelming outpouring of grief all over this country—is that everyone got to learn about her life. She became the national treasure that we all knew she was, but not everyone else knew. And to have children's books about her life and work inspiring the next generation, educating the next generation of how she worked so tirelessly, excuse me, to make ours a better and more just, and more equal society. This is awesome.
Gillian Metzger [00:21:41]: It's also just awesome that little kids are looking up as their icon to a woman who, because she had a brain and a commitment and made a difference in the world. I mean, that's a, that's a great development on so many fronts. And I think that she did, she really enjoyed that little girls sort of saw her on the bench as being perfectly normal, right, and not necessarily something so original, which means that she had achieved so much just in the course of her life, cause that was because of the work that she had started.
Harry Litman [00:22:19]: My 15 year old daughter, Lyla was the one who brought me the news. And she's been inconsolable for, you know, 24 hours. I don't think she could name another justice, maybe Justice Kagan. But this has, you know, really made her completely upset.
We're hearing, reading about some accounts, times where Justice Ginsburg took a real interest in the personal lives of some of the clerks, acted as counselor and the like. I'm just wondering if that was—I think there are some justices or judges who want, you know, like their clerks fine, but want nothing to do with them.
Maybe others who are very much a chambers family. Would the justice kind of look to take on that role with everyone? Would she just be available if you came to her? And did you, what was your experience of her as sort of personal counselor?
Gillian Metzger [00:23:23]: I guess, I mean, my first of all, I think she was actually a very good mentor in terms of she supported her clerks and a number of her clerks went on the academic market and she backed them. I don't think that she, I don't think it was really in her personality to reach out and give counsel, unless you asked for it or reach out and give support unless you asked for it, but she would be there if you were on the market or needed a letter or that kind of support.
She took a real interest, I think in our families. I mean, I had the kind of a slightly mind blowing experience when I went down to DC with my son who was around eight or nine at the time, and we came by the court and I introduced him to her. And she went into grandma mode and literally shepherded my son around the court and pointed out where she sat on the court and where this was. And I mean, part of that is I think she really, she had a ?? , she really did. But I think it was also that she saw it, like she was opening the law, like she was making this world available to him. But it was so interesting because, you know, when I go to the court, you know, it's like, very serious and it's the court and, you know, it's great to see the justice and that would always be warm, but, you know. And here she wasn't grandma, but it was just, for me, it was a kind of a surprising turn of events, but I think that's not unusual.
Amanda Tyler [00:24:47]: No, that's, I mean, I think we all had a very similar experience in that regard. She was an amazing mentor. I remember when I went on the academic job market and I didn't get so many interviews initially, I mentioned that to her and she said, send me a list of names and phone numbers and I'll call. And she started making calls for me. I've never, I can't even begin to tell you how, how much of a difference that made and how grateful I am. She also had— when she knew that you were going through a hard time, if there was a way that she could find out, you know, she would check in and she would look out for you.
I was very close with Linda and Kathy, the two assistants who worked with her and they knew for example that many years ago, I, my family, we were going through a really, really difficult time. And the justice went out of her way to reach out, to offer kindness and support and also incredible wisdom and, and just wise advice about how we would get through it. We would look back on, on the experience and actually find very powerful silver linings. And I can tell you that it was a gesture I talked to her as recently as this summer about because I carry it with me every day.
Ginger Anders [00:26:02]: Yeah. And she, you know, I think her marriage was so important to her and such a source of joy for her, that she was very interested in her clerks’ marriages and weddings. And you know, of course when you're clerking, that's kind of a time of your life where you might be getting married or just married.
And, you know, so I have one of those stories too, which was that we decided to get married over President's Day weekend. You know, we didn't want a wedding, we're just going up to a New York City courthouse. And so she got wind of it and she wasn't having it. She threw us a party, she threw a party for all the law clerks and, you know, gave us, gave us advice. I’ll never forget what she said, which was that my marriage is the most important thing in my life. And so, you should treat it that way. And it's such a remarkable thing for someone like her to say, you know, somebody with such tremendous achievements, you know, who, who, you know, as an advocate, as a Supreme Court justice, right. Just for her to say that just meant so much. And, and really, you know, did it show that that's always the most, important thing, you know, your family, no matter what else you're doing in the world. And you know, it just spoke so much to how her partnership with, with Marty was. It was just an example for all of us. I think it was, it was so joyful and so much of a source of strength for her.
Amanda Tyler [00:27:20]: A very, very special part of being her law clerk when Marty was alive, was watching their great love affair. It really was so special.
Harry Litman [00:27:30]: I was just going to mention this fantastic axiom that I think dovetails with the things you're saying, what would be her main advice about marriage? Would it be, make sure it stays equal from the start or make sure there's mutual respect? Now, I guess this actually came from Marty's mom, but the great piece of advice was: in a marriage, it's good to be a little deaf. That's exactly, kind of counter to type of what you would think. And yet it's so down to earth and sort of big souled or big hearted.
Gillian Metzger [00:28:06]: One thing I was just gonna say, I do have these memories of, you know, Marty would come sometimes in the evening to bring her home. And, um, just when he would come into chambers and this just, this smile would sort of etch itself across her face. She couldn't, she couldn't control it. She was just, a big smile would burst out when she saw him, which is always nice. I think the other thing that— we talk about their partnership and it was so important. But we shouldn't lose track of how unusual for a marriage that kind of relationship was. I mean, she credits Marty so much for supporting her and for the success that she had, but that's also because it really was unusual at the time for a husband to not just support his wife, but to really take on the cooking and childcare and various things that, that allowed her to have the career that she did.
Harry Litman [00:29:00]: Yeah I mean, I think it's a matter of public record, Ron Klain, a real authority, has said that it was Marty's push over the top after the initial, she'd kind of been pushed down a little on the list that, that literally made her become Clinton's first choice.
Gillian Metzger [00:29:17]: Yeah.
Amanda Tyler [00:29:18]: Yeah. He was her biggest fan. What a special thing to say. And Gillian's right, in their generation this was not the norm. She loved to talk about how child-rearing was really important to him. He wanted to spend time with his kids. And so he wanted to share that responsibility. He also believed, I mean, she said this when I interviewed her last fall, I said, do you have any advice for my students? And she said, ‘choose a partner who believes your work is as important as theirs.’ And that's what she did. And thank God. We're all the better for it.
Harry Litman [00:29:52]: I read, I hadn't seen this associated with her before, but the quote that maybe you have heard: “Fight for the things you care about, but do it in a way that will lead others to join you.” And I, again, I did a sort of double take thinking about that and Justice Ginsburg, because, you know, there's a, there's sort of a negative injunction side to that, you know, don't be a jerk, maybe even a good justice should be a little deaf, but the other side of it, kind of form coalitions, work the room, I really think of her not doing, that she led by example or maybe she chose the arguments that had integrity and weren't unnecessarily vicious, but I didn't have the impression of her as kind of working things in that way, is that fair?
Gillian Metzger [00:30:51]: I'm thinking of Justice Brennan and Justice Ginsburg together. Cause you're making me think of I can count to five. I think she really cared about the architecture of the argument, and again, this kind of deliberateness with which it was written. That said, I think you might be giving a slightly partial picture.
She signed on to a lot of opinions without a dissent. And that's not to say that her druthers might not be occasionally, that some sentence or another might not be there, but I think that is the collegiality part. I think that we know her now so much for her voice in dissents, and that's a different art than writing a majority. So I think that also affects our sense of her tone. I do think that she, if you look at her advocacy, the strategy, she had an understanding—and I think she might, in many ways be right—that if you try to go for too much all at once, you may not get what you want to get.
So, you know, she was, I think this was, you know, again, when you see the forcefulness of the dissents over time, it may be that in reacting to the conservative court and in assuming the mantle of the leaders of the liberal bloc, she became more direct, but I think she had a kind of more incrementalist strategy earlier on that was part of her critique of Roe as well.
So I think, but I think that was really, not a sign that she didn't have the commitments as much. It was a strategic question. And, you know, I think that she had more, maybe a little bit more play in the joints and is always evident if you simply look at her dissents.
Amanda Tyler [00:32:33]: Yeah, I think everything Gillian said is spot on. More generally though I think she liked to engage with the other side. She gave one of the eulogies at Justice Scalia's services and what she said at his memorial, and what she said was that his dissent in VMI helped make her majority opinion stronger.
I did not clerk for her that year, but I suspect she was trying right up until the end to get him to join too. Although it was probably at some point apparent it was a lost cause, But I think, when I hear that quote, what it makes me think of is that she was very savvy, but also more generally, it sort of marries with the quote she loved to talk about that her mother told her ‘don’t waste your energy being angry or on other emotions that are not constructive.’ Right. So use your time and your energy on this earth to do something constructive. And that means engaging with the other side, talking respectfully, trying to win them over to your point of view and always having your sort of eyes on the prize, as it were, understanding the big picture of the work that you're doing.
Harry Litman [00:33:53]: I think constructive is an exceptionally good word for her now that I think about it. We've covered a lot of ground, we still have just a few minutes. I just wanted to ask each of you to tell us some detail or anecdote that you think of when you look back on your clerkship. It could be trivial or it could be grand, but something that you really— like the little voice on your shoulder that you kind of keep with you and will keep with you in thinking about the justice.
Gillian Metzger [00:34:29]: Well, so since I gave the little justice on my shoulder before there's one part of her jurisprudence, that I don't think gets enough attention. And doesn't, it's not what she's known for. And that's her approach to Congress and her approach to the role of the court in relation to Congress. And she, I think was actually incredibly powerful there. I think it connected to her advocacy because she recognized the importance of having democratic institutions lead the way to really implementing justice. And people talk about the Ledbetter dissent in which she calls on Congress to remedy, but it was in so many other areas—which they did, exactly—but it was in so many other areas where she just had an understanding of the importance of the court, maybe, you know, doing a floor but not a ceiling on what moves Congress could make. And, you know, it doesn't, it's not one of the opinions of hers that I think gets a lot of recognition being pulled out, but her opinion in FIB v. Sebelius, it's so spot on, on every bit. So in FIB v. Sebelius, one of the issues was whether or not Congress could force you to buy something and the analogy was, could Congress force you to buy or eat broccoli? And you know, it's fine. It's a nice little logical parallel, but it's not reality. Nobody ever is going to try and force you to buy and eat broccoli. You know why? Cause it's broccoli. You know why people think you need to buy and have healthcare? Because it's healthcare. Cause you're spreading costs. Cause we all know you're always going to need help. And she just, you know, she said it and she said it so plainly and it had that same conception of reality of how it, how things work. So I, I really treasure that particular opinion.
Amanda Tyler [00:36:07]: I'll pick up there, if it's all right, and just say that was a pervasive theme about her jurisprudence, and I love that Gillian brought attention to it. For those of us who teach and write about federal courts and administrative law, that's really important. There's another opinion that she wrote for majority called Bank Markazi v. Peterson, in which it's animated by the very same principles, basically that the court needs to be mindful of where its lane is and Congress gets its lane. And without going into the details of the case case, basically there she says with a strong majority that if Congress has complete control over an area of the law— statute, in that case, statutory law, in that case, like as in Ledbetter—then it's not for the court to second guess what Congress does unless there's some meta constitutional principle in play. Yes, then we have something to say, but the relevant law in that case was all within the purview of Congress's power so the court needed to stay in its lane. More generally, I think, as I've looked back on her legacy and I've been reviewing a lot of things from her, from her life and work, I keep coming back to a couple of things—one from my clerkship and one from just looking back on her life. At her confirmation proceedings, she talked about Learned Hand and she talked about the role of the courts. And even with respect to the constitution there, she said, you can't look to the courts as the sole guardians of the constitution. Everyone has to protect the constitution: the Congress, the president, and the people. And she really believed that. And the other thing that marries with this that I would say in reflecting on my clerkship is I keep coming back to the artwork that she had in chambers, which was born out of her faith, but also very much expressed her calling as a lawyer. She had up ‘justice, justice shall bell pursue.’ And I think now she's left that work to all of us and we have to carry it on.
Ginger Anders [00:38:18]: Yeah, that's, that's absolutely right. I mean, I think for me, one thing—this is related to everything that Gillian and Amanda said—one thing that really stands out for me in the clerkship was her respect for public service and more specifically her respect for DOJ and for the executive branch. And there was a sense that, you know, when the United States, you know, came in and said something, she was very conscious of the courts’ relative expertise, relative role. But at the same time, she paired that with the same sort of, you know, exacting standards that she brought to everything else that she was going to hold the government to its aspirations and its ideals. And so, you know, the same thing that she did as a civil rights lawyer, helping America live up to equal justice under law. That phrase applies to all of us. You know, she, she wanted to do the same thing. She expected the United States and the government to uphold its highest aspirations as well and so it made her a great justice in those cases where the question was, is the government living up to what it should be living up to.
Harry Litman [00:39:27]: Well, all right. To pick up on Amanda and from Deuteronomy, let me just say may her memory be for a blessing.
Thank you very much to Sisters in Law Ginger, Gillian and Amanda, especially for joining us so shortly after the difficult news of Justice Ginsburg’s death. And thank you very much listeners for tuning in to Talking Feds. If you like what you’ve heard, please tell a friend to subscribe to us on Apple Podcasts, or wherever they get their podcasts, and please take a moment to rate and review this podcast.
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Submit your questions to questions@talkingfeds.com, whether it’s for Five Words or Fewer, or general questions about the inner workings of the legal system for our Sidebar segments. Thanks for tuning in, and don’t worry, as long as you need answers, the feds will keep talking. Talking Feds is produced by Jennifer Bassett and Rebecca Lowe Patton. Our editor is Justin Wright. David Lieberman and Rosie Dawn Griffin are our contributing writers. Production assistance by Matt McArdle. Our consulting producer is Andrea Carla Michaels. Our gratitude as always to the amazing Philip Glass who graciously lets us use his music. Talking Feds is a production of Dalito, LLC. I’m Harry Litman. See you next time.
