Erwin Chemerinsky: Good afternoon. I hope this finds everyone and all of your loved ones safe and healthy. We come together this afternoon in sadness. We learned late on Friday that Justice Ruth Bader Ginsburg passed away. She was a hero to so many. It’s an enormous loss to the court, to law on this country, and to our society. In the law school, it seemed only appropriate that we should gather to remember her, to talk about her legacy, and we must also face the question of what comes next.
So I asked several of my colleagues on very short notice if they would be willing to speak this afternoon and offer their perspectives. I will, as I always do, apologize to them. I’m not going to do long biographies. You know who they. The key is to spend the time listening to them.
Let me just tell you the order in which they’ll be speaking. Then our goal is we’re going to leave a lot of time for questions as well.
The first speaker will be Professor Amanda Tyler, Shannon Cecil Turner Professor of Law. She clerked for Justice Ginsburg. I should also mention that she and Justice Ginsburg completed work on a book together, that’s based on what Justice Ginsburg was saying when she was here last year at Berkeley Law.
The second speaker will be Catherine Fisk. She’s the Barbara Nachtrieb Armstrong Professor of Law. The third speaker will be Orin Kerr, who’s a professor of law here and clerked for Justice Anthony Kennedy. I’m going to speak fourth and offer some remarks. Then we’ll hear from Professor Bertrall Ross, Chancellor’s Professor of Law.
Professor Ian Haney López was going to join us. An unexpected meeting arose that he had to be part of. He’s going to try to join in when he gets here. But if not, he sends his apologies and his regrets.
And so, it only seems appropriate to start with Professor Tyler. If you were here last year, you got to hear Amanda’s brilliant interview of Justice Ginsburg. We feel so fortunate that Justice Ginsburg was part of the law school in that way.
Justice Ginsburg had a special relationship to Berkeley because of her relationship to Herma Hill Kay, who was a longtime professor and dean of Berkeley Law School. That’s why it meant so much to have Justice Ginsburg deliver the inaugural Herma Hill Kay memorial lecture.
Amanda, what do you think was Justice Ginsburg’s greatest legacy? What was it like to clerk for her? If Justice Ginsburg could somehow be here today and left us some advice, what do you think she would say?
Amanda Tyler: Thanks, Erwin. That’s a lot of ground to cover in a short time, but I’ll try. I actually want to start by talking about her relationship with Herma, this community, to make sure our students know about Herma. Herma was one of the justice’s oldest and dearest friends. Herma was the first woman law dean, female dean at Berkeley Law. Herma was the second woman law professor at Berkeley Law.
They were dear, dear friends because they joined together to write the very first case book on gender discrimination, sex-based discrimination they called it.
I want to share with everyone that the justice was so committed to doing the event last year honoring Herma mother that she did over my objections. I really was very concerned about her traveling. She was fighting cancer. I so desperately wanted her to come, but I said, “Justice, really, Herma will understand.” It was just so important to her, so important to her, to honor Herma and to honor Herma’s legacy here, and just to make sure that we keep telling Herma’s story.
So I appreciate you saying that, Erwin, and giving me the nudge to be able to say that at the outset. When you try to think about summarizing her legacy, it is really, really hard to do it in a short amount of time, because her legacy is profound.
There is the legacy of her as an advocate. Many people have said correctly that had she never even been on the Supreme Court, we would be talking about her today. Her legacy as an advocate completely changed the face of American society. As recently as the 1960s, the Supreme Court was upholding laws that excluded women from jury service, saying, “You know what? If the state wants to say a woman’s place is in the home, that is fine.”
Enter Ruth Bader Ginsburg. By the end of the 1970s, the court was routinely striking down many cases that she litigated, laws like that, including jury laws. She saw Hoyt overturned based on her own work in a follow-on case.
As an advocate, she opened the eyes of the Supreme Court to the lived experiences of both men and women who are held back by gender stereotypes. Because of that, she was able to convince them, to educate them, to teach them as to how gender stereotypes do that, not just to women but to men as well, and how putting women on a pedestal, as Justice Brennan said, and Justice Ginsburg loved this quote, is actually putting them in a cage. It’s holding them back. Laws like the jury laws in question, they communicate that women aren’t welcome be civically engaged. Happily, by the end of the 1970s, the entire law, the entire foundation of all of that, had been changed because of Justice Ginsburg’s efforts as an advocate.
Generally, when you look back at her life and her time on the court, you see the same pervasive work. She had on her wall in her chambers, in her office in chambers, a passage from Deuteronomy that says, “Justice, justice thou shall pursue.” That was at the heart of everything that she did. She worked tirelessly every single day of her life to make sure that the constitution was ever-expanding in its inclusiveness and make sure that people from all walks could count on the constitution’s protections to cloak them.
She talks about this in her great VMI opinion that this is the story of our constitution. It is an expanding one of inclusivity. That was something that she made possible both as an advocate and as a justice. We can talk about so many decisions in that way. They go across many, many fields.
What I loved about her legacy or what I loved about her as a justice, and this was born out of all of her life experiences that she brought to the bench and also her time as an advocate, she understood that the decisions excuse me that the Supreme Court was handing down had very real ramifications for the lived experiences of Americans.
In her opinions, you see a voice, a voice who gave an account of how the law impacted the experiences of Americans. You see it in so many of her opinions, Ledbetter, where she chides the majority for not understanding how hard it is to uncover equal pay violations, chiding the majority for not understanding how a woman in Lilly Ledbetter’s position, working in a factory, would be reluctant to complain initially even if she had suspicions, which would be hard to do in those circumstances. But complaining in that situation is a perilous thing, she explained.
In Shelby County, she walks through the experiences of those trying to exercise their vote in the south. She points out how the majority doesn’t understand how its decision is so at odds with the lived experiences of those who it purports to govern.
I can cite many, many, many more examples, but that was one of my very favorite things about her jurisprudence, that it wasn’t abstract. It was very real. She understood the lived experiences of a very broad spectrum of our society, and that influenced all that she did.
What was it like to clerk for her? It was incredible. I’ve said now in print. I mean every word. It was one of the greatest honors of my life. She was incredible. She was the kindest, most brilliant, most inspiring boss I could have ever asked for. She demanded the best of you. She wouldn’t accept anything less, and that was okay, because we rose to the, occasion all of us.
She made us better in that way, and I am profoundly grateful for the experience, not just because I got to know her but for all that she taught me, all of the opportunities she opened up for me then and after. It was an extraordinary privilege.
It was also fun to get to know her. She did have a sense of humor. The public didn’t see it very much. She was immensely kind. I try to capture that kindness in my tribute to her out in the Atlantic today.
Most of all, though, she was inspiring to us for all the same way she was inspiring to all of you. She was resilient, she was determined, and she was fundamentally profoundly dedicated to being a public servant and to public service more generally.
She was also very dedicated to making sure that every ounce of her energy was put toward constructive ends. I think that’s something we all want to remember. She talked about not letting anger or other things, her mother taught her this, overtake what you do and not to waste time on things that were not constructive, but to look, to think about how you can make the most constructive contribution through your work. I think, as I was saying to my students earlier today, she did more than her fair share on that score.
What would I say to students? What would I translate from her life as a lesson for our students? It was really important to Justice Ginsburg that people understand … And not just law students, everyone, that everyone understand … that building that more perfect union, a phrase she loved to use from the preamble of the constitution, wasn’t just the work of the justices. It was the work of everyone.
She was testifying before the Senate Judiciary Committee at her confirmation proceedings. She quoted and invoked Learned Hand. She said that, “Justices do not guard constitutional rights alone. Courts share that profound responsibility with Congress, the President, the States, and the people.”
It was really important to her that people work in tandem to try and build that more perfect union. Also, as I said a moment ago, it was really important her that people look for constructive ways to take up at work and to make those contributions.
She also was resilient, as I said, and I hope that resilience inspires our students to do that work and to pour their energy into being and becoming the best. I hope all of you will become the best lawyers you can be.
I likened working for her to being on a team … I chose not my sports; it was to try and reach a more general audience … to being on a team with Michael Jordan. She brought out the best in everyone around her. I think the translation here for me would be maybe being on a team with Megan Rapinoe.
But the justice, uncharacteristically, once … I think only ever once … used a sports analogy herself. In talking about having to work through all the hardships and adversity and challenges she’s faced in the last few years, she said to her dear friend Nina Totenberg, sometimes you have to play a little hurt.”
I think what that means is you have to take this lesson from a woman who went on the bench the day after her beloved husband of 56 years died to hand down a decision, that you have to stay the course. You have to pick up the mantle of her work. We all have to pick up the mantle of her work and we have to move forward carrying on a legacy.
And so, that’s what I think she would say to all of you, particularly to the students. Keep her legacy alive through your work. Thank you.
Catherine Fisk: We all know that Ruth Bader Ginsburg was a pioneer of the law of sex discrimination and expanding the rights of all to be free from workplace discrimination. We know most that she did so by winning, both as a lawyer and to some extent when she was on the court. But I want to focus on two cases in which she improved the law even though she lost in the Supreme Court, because her losses inspired legislative change.
The first case is pregnancy discrimination. As a lawyer for the ACLU Women’s Rights Project, Ginsburg challenged pregnancy discrimination as sex discrimination in a case called Struck versus Secretary of Defense at a time when nobody envisioned pregnancy discrimination as sex discrimination, at least no legal decision makers did.
The Air Force had discharged a female officer solely because she was pregnant. Ginsburg argued that the policy violated equal protection. The Supreme Court did not grant review in the case. Indeed, when the court did take two pregnancy discrimination cases, it ruled against the female plaintiffs, both under the constitution and under Title 7 of the Civil Rights Act. But Ginsburg’s arguments were so compelling to so many that, in 1978, Congress did what the Supreme Court refused to do and legislatively overruled the Supreme Court in the Title 7 area.
The second example where Ginsburg won even though her side did not initially prevail, Amanda has already mentioned, pay discrimination in the 2007 case of Ledbetter versus Goodyear. As Justice Ginsburg explained, Lilly Ledbetter was a supervisor at Goodyear for nearly 20 years until her retirement in 1998. For most of those years, she worked as an area manager, a position largely filled by men.
Initially, her salary was in line with the men working in similar jobs. But, over time, her pay slipped in comparison to that of male area managers with equal or less seniority. And so, by the time she neared retirement, she was earning $1000 less per month than even some of the lowest paid male managers.
The Supreme Court majority held that she could not challenge the pay discrimination because, under the court’s view, the six-month statute of limitations for filing sex discrimination claims began to run at the date the decision was made to set her pay, and that date was long past by the time she discovered what had happened to her.
Justice Ginsburg recognized in her dissent that this was a license to discriminate. As she said, “The court’s insistence on immediate contest overlooks common characteristics of pay discrimination. Pay disparities often occur, as they did in Ledbetter’s case, in small increments. Cause to suspect that discrimination is at work develops only over time.
Comparative pay information, moreover, is often hidden from the employee’s view. Employers may keep under wraps the pay differentials maintained among supervisors, no less the reasons for those differentials. Small initial discrepancies may not be seen as meat for a federal case, particularly when the employee trying to succeed in a nontraditional environment is averse to making waves.”
And so, for these reasons, legislators recognize that the Supreme Court was wrong in ruling that Title 7 prohibited plaintiffs from bringing pay discrimination cases. The first piece of legislation that President Obama signed after taking office in January of 2009 was the Lilly Ledbetter Fair Pay Act. It amends employment discrimination law, both Title 7 and the Equal Pay Act, to allow those affected by pay discrimination to sue when the discriminatory compensation decision is adopted, when an individual becomes subject to it, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid. That rule, had it been in effect, would have made all the difference for Lilly Ledbetter.
So while we are mourning Justice Ginsburg’s loss, remember what she stood for. She fought hard against personal adversity and against professional adversity. She never gave up fighting and she lived a long life, and a good one.
In her spirit, let me close by quoting two famous labor activists. Mother Jones, Martha Jones, told a group of miners at their union meeting at a time when it was illegal to form a union and when workers banding together to improve their pay or working conditions were killed with impunity by the companies they work for, she said, “Pray for the dead and fight like hell for the living.”
Everybody remembers the quote, but nobody remembers the stakes that Mother Jones knew and what she was urging them to do. Fight like hell at tremendous personal cost and risk.
Along the same lines, another famous labor organizer, Joe Hill, who was put to death by the government of Utah for trying to help workers form a union at a time when it was illegal, he wrote to a fellow union organizer just before he was wrongfully executed for a crime he didn’t commit. He said, “Goodbye, Bill. I die like a true-blue rebel. Don’t waste any time mourning. Organize.”
I think that’s what Justice Ginsburg would want us all to do, and to recognize that whatever happens to the Supreme Court without her on it, it does not have the last word. Ordinary people organizing have the last word. Congress, state and local governments have the last word. There’s tremendous work for lawyers and law students to do to carry on the work that Ginsburg started. I am certain that she would want us to fight no matter how hard it is. Thank you.
Orin Kerr: Thank you all for inviting me to join the group here. It’s awfully difficult to go after Professor Tyler and Professor Fisk in honoring Justice Ginsburg, who had such an extraordinary career. Those two presentations were wonderful, and I’m going to take a slightly different tack. I’m going to offer a big picture perspective on her career first briefly. Then for the rest of my remarks, I’m going to go move on to the second part of what this panel is about, the what’s the future? Where do we go from here?
So let me start just by offering a few thoughts on the career of Justice Ginsburg. It’s just going to be hard to imagine a Supreme Court without Ruth Bader Ginsburg. I mean she’s such a core member of the Supreme Court for 27 years. She was nominated to the Supreme Court after a distinguished career as an advocate and a distinguished career as a judge on the DC Circuit.
Comes to the Supreme Court and is confirmed by the Senate by a 96 to three vote, unimaginable today, and for her entire career as a justice was universally respected for her legal talents, for her work ethic.
If Justice Ginsburg saw a problem in a case, there was probably a problem in the case. Different justices have different levels of scrutiny and care and precision and work ethic. Justice Ginsburg, I think, was just at the top of that throughout her entire remarkable career.
In terms of her legacy, I think of this as almost there being three stages to Justice Ginsburg’s legacy. The first is her career as an advocate before she became a judge, which, as Professor Tyler pointed out, was just absolutely extraordinary. I mean what a career as an advocate she had. Just absolutely remarkable.
Then I think until the last maybe 10 years of her time on the Supreme Court, I think she was more considered a lawyer’s lawyer. When I was a law clerk, which was in 2003 to 2004, I think her perception was more of a center-left, almost sort of technocrat, like absolutely hardworking, precise, detail-oriented justice, but an institutionalist justice as well.
In the last 10 years of her life, her career on the court, that I think shifted into more of what maybe we call the notorious RBG phase, where there was much more of a public perception of her and the public attention focused on her for her role, which is almost like a third state.
I don’t think she … At least my impression, I didn’t have any sense that there was a change in how she went about her job. But the public perception really came forward such that I think for many years she was doing great work on the court without being the center of attention and then really became a major public figure, one of the most prominent people in the country, late in her career, which was really quite remarkable.
Now I want to talk about a little bit about where things may go next. I mean we’re in a truly extraordinary situation right now. It’s 40 days or so until the presidential election. President Trump has committed to naming a replacement for Justice Ginsburg’s seat by the end of the week. It’s a Republican Senate. Majority Leader Mitch McConnell’s going to try as best he can to fill that as quickly as possible with a justice who’s obviously going to be quite different on many issues, the opposite of Justice Ginsburg.
I think the real attention is about to shift to the Senate. Are there enough votes? It’s a 53-47 Senate. With 50 votes, the tie goes to Vice President Pence under the constitution. So it’s a question of can you get four defectors from the Republican side to say, “We are not going to vote to fill the seat until after the election?”
My best recollection… I was checking the news beforehand. I think there have been two, Senator Collins and Senator Murkowski, who said they’re not going to so. Are there going to be two more votes on the Senate side? Perhaps Romney, perhaps others, we don’t know. That’s going to be really where I think the tension is going to come.
I share the sense that the likely replacement for Justice Ginsburg’s position, or the person likely to be nominated for that seat, is likely to be Seventh Circuit Judge Amy Coney Barrett. I think there are a lot of reasons why that’s going to be likely to be Trump’s pick. We don’t know that. Of course, we’ll have to wait and see.
But what an absolutely extraordinary situation. Not only is there going to be an enormous partisan brawl over filling the seat in the next 40 days before the election and then after that as well, but I suspect that this will considerably change the presidential race itself in that the presidential race had been about President Trump’s incompetence and maliciousness and complete failure primarily to deal with coronavirus, in addition to many, many other things.
I suspect a major story, if not the major story, going forward for the next 40 days is going to be the Supreme Court. We’ll see what effect this has on the election. We don’t know, but it may have a significant one.
So the future is, unfortunately, going to be one … Very likely, it’s not going to be a pretty thing. But it, I think, boils down to Senate positions. Are there going to be two more defectors or not and what’s the Senate going to do, ultimately?
So that’s likely the future. Sorry to mix those two. I realize that’s a jarring combination of honoring Justice Ginsburg and then just talking raw politics. But that was what the panel was supposed to be about, so I figured we should talk at least part of that. Happy to answer more questions during the Q&A.
Erwin Chemerinsky: My enormous thanks to Amanda Tyler, Catherine Fisk and Orin Kerr for their great remarks. I look forward to hearing Bertrall Ross’ remarks. I, too, wanted to speak on the panel. As I wrote to everyone this morning, I think whatever our political views, Ruth Bader Ginsburg is a wonderful role model in terms of using the law to bring about social change, how to use the law to make people’s lives and our society better.
Like the prior speakers, I’ll open with just three questions. First, I want to talk about her legacy as a justice. Second, I want to talk about what are likely to be the effects of her no longer being in the court? Third, I want to talk about what’s likely to happen on the nomination and confirmation process.
And so, the first, I was thinking of the areas where her voice likely made the most difference. We’ve already touched on some of them just in this program. We talked about her importance with regard to sex discrimination.
I remembered I read her opinion on the United States versus Virginia in 1996. This was the case where the Supreme Court declared unconstitutional Virginia Military Institute’s exclusion of women. She wrote the opinion in the 7:1 decision that there’s unconstitutional sex discrimination. There was such a sense that her entire career had brought her to the court to write this important decision about gender equality into the constitution.
I think of her opinions in the area of reproductive freedom. In 2014, in Hobby Lobby versus Burwell, she wrote a stirring dissent that really focused on the importance of access to contraceptives for women in society, for reproductive control, and for equality. One of the last dissents that she wrote just in June was in Little Sisters of the Poor versus Pennsylvania, where again she stressed the importance of accessibility to contraceptives.
She also was an important voice on the court in terms of separation of church and state. She believes that there should be a wall that separates church and state. In the words of an earlier court, “A wall that’s high and impregnable.” She believed that there shouldn’t be religious symbols on government property. She believed that the government shouldn’t be giving aid to parochial schools. She believed that the place for prayer is in the home and churches, synagogues, and mosques, not at government meetings.
As I thought about these areas where her voice was so important, I realized that, I guess we remembered, she was the second woman to ever serve in the Supreme Court, the sixth Jewish justice ever to serve on the Supreme Court, how much her sex and her religion shaped her views.
Maybe this is a reminder that for any judge or justice, who they are and what they’ve experienced will inevitably influence what they do when they’re on the bench. That’s certainly led to Justice Ginsburg’s powerful voice in these areas.
Well, second, what about the effects of her no longer being on the court? I want to talk about the effects short term and then longer term. In the short term, the current court has four very conservative justices, and those are Justices Thomas, Alito, Gorsuch, and Kavanaugh. It had John Roberts, who’s to be sure right of center, the more moderate conservative. Last term, there were four justices who were left of center, Ginsburg, Breyer, Sotomayor and Kagan.
There were some very important decisions last term where John Roberts joined together with Ginsburg, Breyer, Sotomayor and Kagan to create the majority in 5-4 rulings. For instance, in the Department of Homeland Security versus University of California, the Supreme Court 5-4 said that President Trump violated the Administrative Procedures Act in rescinding the Deferred Action for Childhood Arrival program. It was Roberts and the four liberals who were doing that.
Or in an important abortion case, June Medical Services versus Gee, these five justices said the Louisiana law was unconstitutional in requiring that doctors have admitting privilege at hospitals within 30 miles in order to perform an abortion.
Last term, John Roberts was the swing justice on the court. He was the median justice, ideologically. If Ruth Bader Ginsburg is replaced by, say, as Professor Kerr suggested, Amy Coney Barrett, there will be five justices substantially to the right of John Roberts. They would be Thomas, Alito, Gorsuch, Kavanaugh, and the new nominee.
No longer would John Roberts be the swing justice. No longer would be the possibility that Roberts might join with the liberal justices to create a majority. To take an example, with regard to abortion, I’ve always thought that Roberts would generally vote to uphold restrictions on abortion, but I’d be willing to overrule Roberts’ weight.
I have no doubt, none, that Thomas, Alito, Gorsuch, and Kavanaugh, and if it’s Amy Coney Barrett will be five votes to overrule Roe, and I think they would want to do it soon while they know they have the five votes. This is in part of the conservative agenda for a long time.
I don’t want to overstate the short-term effect. Last term, on the Supreme Court, there were 14 5-4 decisions. In 10 of them, the majority was Roberts, Thomas, Alito, Gorsuch, and Kavanaugh. In just two of them was the majority Roberts, Ginsburg, Breyer, Sotomayor and Kagan. Justice Ginsburg was much more in dissent than in the majority under Roberts’ court. But I do think shifting the ideological median on the court, the center, the swing justice in Roberts, to something much more conservative is going to really matter in the short term.
Then what about the long term? Amy Coney Barrett is 48 years old. Barbara Lagoa, who’s been mentioned a good deal, is 52 years old. My former student, Allison Jones Rushing, is 39 years old. If any of these women are confirmed, it’s going to mean this seat is in the hands of a conservative for decades to come. After all, John Paul Stevens resigned at age 90. Ruth Bader Ginsburg passed away at age 87.
As we think about the longer term with regard to the Supreme Court, what will it mean with regard to the process, with regard to the legitimacy of the court?
What occurred in 2016 with the nomination of Chief Judge Merrick Garland was unprecedented in American history. Prior to 2016, 24 times in American history, there’ve been a vacancy in the last year of the president’s term. In 21 of 24, the Senate confirmed and three of the Senate denied confirmation. Never before had the Senate said no hearings, no vote in an election year.
Senate Majority Leader Mitch McConnell said in an election year, it should be for the people to decide who’s going to pick the next Supreme Court justice and refused to even hold hearings on Chief Judge Garland.
We’ve already heard Senate Majority Leader McConnell say they’re going to get a vote and they’re going to try to do it before election day or maybe in the lame duck session of Congress that it should be for the president to fill the vacancy.
The hypocrisy of this is stunning. What will it mean for the legitimacy of the court if somebody is rushed through? What will it mean for the legitimacy of the court in light of how Brett Kavanaugh was confirmed just a couple of years ago? None of us can know the long-term consequences for the Supreme Court, but we need to have them in mind.
Well, third, what about this confirmation process? I think that Professor Kerr described it well. It’s 53-47 in the United States Supreme Court with Republicans the majority. If it’s a tie, the vice president breaks the tie. It would take four Republican senators saying they don’t believe that President Trump should be the one to fill this vacancy. They should wait until after January 20th. Whoever’s inaugurated then should be able to fill the vacancy.
Will there be four Republican senators willing to stand up to the enormous pressure on this? This was pointed out. Lisa Murkowski and Susan Collins have said they don’t believe that it should be filled at least before the election. But can we imagine two other Republican senators being able to do this? What then happens if the Republicans pushed through the replacement for Justice Ginsburg and pushed through somebody who’s very conservative?
Now I actually am going to slightly disagree with Orin Kerr. I think Amy Coney Barrett is likely, but if I were to give my prediction … And predictions are free within a cause … I think 11th Circuit Judge Barbara Lagoa is the most likely to be picked. She’s Latina. She’d be the second Latina to serve on the Supreme Court. She’s Cuban American. She has a compelling life story. She’s from Florida, a swing state. She would, I think, appeal to Latinx voters. What President Trump has most in mind is what will help the most in the election. But we’ll learn on Thursday or Friday whether it’s one of these women or somebody else.
I think that if the Republicans push through a confirmation of one of these individuals, and if Joe Biden wins on Nov. 3 and if the Democrats take the Senate, then I think the Democrats in 2021 should and will increase the size of the Supreme Court.
The size of the Supreme Court is not set by the constitution. It’s set by statute. It’s ranged over the course of American history from five to 10. Hard for us to imagine there was a time when they chose to have 10 justices, an even number. Nine is a historic accident. It’s because in the late 1860s, Congress didn’t want unpopular President Andrew Johnson to fill a seat on the Supreme Court.
I think the Democrats will say it’s the Republicans who packed the court, what they did in 2016 and 2020. Increasing the size of the Supreme Court is simply meant to offset that, to restore the stolen seats.
I don’t underestimate the divisiveness of this at a very divided time. I don’t deny that if the Democrats do this, then in 2024, 2028, in 2032, as the Republicans stick the White House and Congress, they could again increase the size of the court.
But I also believe that the Democrats can’t sit by and do nothing. What we’re talking about is the court for decades to come. What we’re talking about here is the most precious rights of individuals, rights that affect all of us in the most intimate and important aspects of our lives.
I very much believe, what some have already said in this program, that if Justice Ginsburg were here and could speak to us, or if she left us final words, she would say we have to fight on and fight harder and better than ever before. That’s why I think the Democrats would have to do this should the Republicans push something through now. I’ll turn it over to Bertrall.
Bertrall Ross: Thank you, Erwin. Ruth Bader Ginsburg lived an incredible life as a pioneer, justice and equality advocate, role model, and long-term servant of the public. There’s not much more that I can add to the many tributes and accounts of her legacy described here today, published in newspapers, and shared in media outlets throughout the weekend.
Perhaps the most poignant tributes came from her immediate colleagues on the court. Chief Justice Roberts described her as a tireless and resolute champion of justice. For Clarence Thomas, she was the essence of great stability and dignity. For Justice Stephen Breyer, she was a great justice, a woman of valor and a rock of righteousness. Justice Samuel Alito, in accordance with the views of countless others, noted that she has been and will continue to be an inspiration for many.
Justice Sotomayor referred to her dear friend as an American hero and a path-breaking champion of women. Justice Elena Kagan described Ginsburg as an attorney who led the fight to grant women equal rights of the law and a judge who worked to ensure that this country’s legal system lives up to its ideals by extending its rights and protections to those once excluded.
Justice Neil Gorsuch noted Justice Ginsburg’s many sacrifices to our country in the honor of her performance. Finally, Justice Brett Kavanaugh said of her that no American has ever done more than Justice Ginsburg to ensure equal justice under law for women.
Justice Ginsburg deserves every tribute that she has received and more. We’ve been very fortunate to have her as part of our country and our society as long as we did. For many, Ruth Bader Ginsburg was an icon, a feminist icon, a justice icon, an equality icon. I agree that such veneration is much deserved.
What worried me towards the end of her life and career was the blurring of lines between her icon status based on what she had done and icon status that seemed to be assigned to her based on who she was: a justice of the Supreme Court.
Justice Ginsburg was not alone, as we saw this level of veneration for Justice Antonin Scalia at the end of his life as well, the justice as rock star or superhero.
Why it worried me with both Justices Ginsburg and Scalia was because the veneration of justices can distort our understanding of the role and status of justices, as well as our understanding of the role and status of the Supreme Court in our society.
Justices, it is important to remind ourselves, are servants of the people. The Supreme Court, as it is equally important to remind ourselves, are institutions delegated authority to serve people. Why does this matter? Because public veneration, the particulars of an institution, can lead to hubris from that institution based on misunderstandings of its institutional role.
When I say the Supreme Court’s an institution delegated authority to serve the people, I do not mean that it is an institution that must follow majoritarian preferences. In fact, the people delegate to the Supreme Court the authority to exercise power contrary to majoritarian preferences at the moment in so far as such preferences contradict the supermajoritarian principles of the people, these supermajoritarian principles contained in the constitution in our evolving understanding of that document.
But the Supreme Court does not have the authority to exercise power contrary to majoritarian preferences simply to advance their own or their particular ideological provision of what should be. It’s often difficult for people to distinguish between the constitution’s supermajoritarian principles and the ideological views of justices, as judicial hubris derived in part from justices’ veneration by the people can make the people start to think that what the justices say must reflect our supermajoritarian principles even when they do not.
I, therefore, think it is important as we move forward and think about our court in the future that we start to make more clear distinctions between the persons and the office. Ruth Bader Ginsburg should be venerated for the incredible life she led and the causes that she contributed to. She made our society more just and equal.
But Justice Ginsburg should not be venerated, but rather appreciated and even celebrated for the dignity and integrity with which she served the people. As a people, we should demand from all justices such similar levels of service.
As we look ahead, I’m pessimistic about the capacity of members of the court to see beyond their ideological views towards a more unbiased account of what our constitution demands in the moments of crisis that we are in and that will face our country in the future.
That pessimism is grounded in the fact that it’s really hard for any human being to subordinate their subjective values. For the most part in our history, justices have not been successful at doing so.
I don’t want to spread the illusion any further that justices are umpires merely calling balls and strikes. But what justices can do is consider their competence and capacity to be arbiters of the difficult challenges we currently face as a society and will face as a society in the future. This includes a potential crisis right in front of us, the presidential election in November.
Also, the more deep-seated crises of racial justice manifested in centuries of state violence that police cameras and iPhones have recently made visible again. Persistent inequalities on the basis of other statuses, gender, class, and sexuality among many others, that Justice Ginsburg fought to advance. And the existential threat to our republic in our world, in our earth represented by climate change.
The role of the court is certainly not to construct policy on these issues. They have not been assigned that authority to legislate or execute the laws. But with their decisions and understanding of role, they can be facilitators rather than impeders for democratic resolutions of these extraordinary challenges.
If the court decides otherwise, if the court decides to return to its role in the 1930s as an impediment to democratic resolution of crises, you can see a standing fall. And with the fall of the court will be the fall of the republic as we know it.
I also think that traditionally understanding of its role is all we can rely on right now. But like many of you, I have little faith that justices will be able to constrain themselves. I feel confident that Donald Trump will nominate and the Senate will confirm a new justice before any change in leadership.
This new justice will be very conservative and result in the establishment of a strongly conservative five-person majority on the court, with the sixth justice, Chief Justice Roberts, having much stronger allegiance to the majority than to the more liberal minority. This highly conservative court will be out of touch with more moderate views of the public, and this discordance is only likely to grow over time.
But I see that much discussed response of packing the court that Erwin has described as only quickening the demise of the institution, as there’d be no clear end point to a constant tit for tat of court packing. Instead, I think sustainable reform of the court to ensure that it is an institution connected to the people and the public will be through a constitutional amendment establishing term limits.
You might say, and I completely agree, that it’s really hard to amend the constitution. But I think that hard work will be necessary to save the court and the republic as we know it. Thank you.
Erwin Chemerinsky: Thank you, Bertrall. Thanks to each of the speakers for those wonderful presentations. We have questions. I’m going to access the questions now. I’ll just read them in the order in which they came up.
“Collins, Murkowski have both said they won’t vote on a nomination before the election. Do you think they’re phrasing it this way to leave open the possibility they will vote before the inauguration?” Orin, maybe turn to you since you discussed this the most.
Orin Kerr: Sure. I read what they said as saying that whoever is elected president on Nov. 3 should be able to make that nomination. So I think that holds open the possibility for if Trump wins re-election, then they could move forward on a vote on the nomination. But if Biden wins, then he would have an opportunity to nominate somebody for that spot. The seat would not be filled in the late November period, at least that’s what I think that they both said. But I’ll have to go back and check the exact language.
Erwin Chemerinsky: Does anyone else want to speak to that question? The next question that I got, “With a replacement under the Trump administration seeming increasingly likely, Democrats may feel pressured to respond with either packing the court or weakening the power of the court. Can you elaborate on these options, what it might look like? Do you think either these are likely to happen?” Does anyone want to speak towards that?
Bertrall Ross: I think, Erwin, since you introduced it, you’d be best to start us off.
Erwin Chemerinsky: Sure. A week ago, Saturday, I participated in a conference by Zoom at William and Mary Law School. I was in a panel and it was discussing various possible reforms for the Supreme Court. One was what Bertrall talked about in terms of term limits, which I favor. Another was about changing the court in terms of a 5-5-5 split, like some professors like Dan Epps have argued for. Also discussed was the possibility of increasing the size of the court.
The moderator of this panel, Bob Barnes, who writes for the Washington Post, asked if any of the panelists thought that there’d be an increase in the size of the court. I spoke up and I said if, God forbid, something were to happen to, say, Justice Ginsburg between now and the election and the Republicans would’ve pushed somebody through, I think the Democrats would then respond in 2021, if Biden wins and a Democratic Senate, by increasing the size of the Supreme Court.
Obviously, it’s controversial, and Bertrall has talked about some of the downside. But I think the Democrats would feel they have to do something about these two stolen seats.
In terms of restricting the Supreme Court, those who are in federal courts this semester or those who had Amanda Tyler or Willie Fletcher, federal courts, know that there is a clause in Article III, Section 2 that says the Supreme Court’s appellate jurisdiction, with such exceptions, and regulations as Congress shall make.
There’ve been proposals throughout American history for Congress to use this to deprive the court of the ability to hear particular kinds of cases, such as challenges to abortion laws or school prayer laws or laws that require under God in the Pledge of Allegiance. But none of these bills have ever gotten adopted.
Is it possible that a Democratic Congress with a Democratic president might try to restrict Supreme Court jurisdiction? Certainly, but there’s the same downside that Bertrall talks about. Once that Pandora’s box is open, it can then be used in the future by Republican congressmen, Republican president.
That’s why I think the more likely course, and the course that’s most likely to get where we want to with regard to the Supreme Court and the constitution, will be expanding the size of the court.
Orin Kerr: Erwin, can I offer a response to that?
Erwin Chemerinsky: Of course.
Orin Kerr: I share Professor Ross’ view that the answer here is term limits and not changing the size of the Supreme Court. Let me explain a little bit about why. In 2013, 2014, there was a major public debate over whether Justice Ginsburg should resign. A replacement would have been nominated by President Obama and there was a Democratic Senate.
And so, the argument made, perhaps most prominently by our very own Dean Chemerinsky, was that, “Justice Ginsburg, you have to resign because here’s what might happen. There might be a Republican president who’s nominated and they would put a Republican on the court to replace you.” Justice Ginsburg rebuffed those arguments and seemed quite confident that a Democratic president would be elected in 2016.
And so, she made a choice to stay on the court rather than step down and be replaced by an Obama nominee. If she had lived a few more months, she, at least the poll suggests, likely would have been replaced by another Democratic nominee under, hopefully, President Biden.
If that happens, it seems to me that the rule would be … It seems awkward to me to call it a stolen seat given that it was predicted that this was a possibility and that Justice Ginsburg herself made that choice. And so, it’s illegitimate to … And I should say that I hope there are sufficient votes to hold this over for the next election. I think it is deeply problematic to try to push somebody through in such a short period of time.
But I also have a hard time thinking that it’s illegitimate to try to do so given that that was what was predicted by you, Dean Chemerinsky, and others, as a problem in 2014. I think this does go back, to echo Professor Ross, to the problem that there should be Supreme Court term limits. It’s exceedingly odd that we have a system where the future of the Supreme Court and the direction of US politics more broadly is contingent on how long one individual stays able to remain on the Supreme Court. I think it’s a system that’s hard to defend and should be changed.
Erwin Chemerinsky: May I go to the next question, or somebody else want to speak? The next question, “I feel like there’s a lot out there about Justice Ginsburg’s work, advocacy, opinions, during the time of the ACLU on the Supreme Court. I’d love to hear more about her time on the DC Circuit.” Go ahead, Amanda.
Amanda Tyler: A few people remember that she wrote the decision in Chevron that … Sorry, I have my support animal at my feet and he’s being a little loud, shaking his tail. That she wrote the Chevron decision that the court overturned. So I hope, as a lot of you who have or are studying administrative law, she actually came out the other direction on that one. So that was one of her biggest decisions there.
It’s interesting, if you look at the broad arch of her decisions, a lot of the stuff that comes to the DC Circuit is regulatory in nature, administrative law cases like Chevron. And so, what one finds when one tracks, for example, how often she voted with Justice Scalia and Robert Bork, Judge Robert Bork, it’s over 90%. I think that’s a reflection of the nature of the jurisdiction of that circuit.
It doesn’t actually tell you a lot, as we can see, by comparing how often she and Justice Scalia voted together on the Supreme Court. It doesn’t tell you a lot about a particular disposition when she was there. But I think that fitted into the narrative which many people don’t remember and, of course, many of our students might not have even been alive when she was nominated, but there was some pushback. People thought she was too moderate.
That was mainly a result of the speech that she’d given about Roe versus Wade, but I think some people also looked at her work on the DC Circuit and didn’t see enough indications of what they hoped to see in terms of a justice who would stake out the positions that she ultimately did come to stake out as a justice.
Erwin Chemerinsky: Does anyone else want to speak about her role in the DC Circuit? The next question that I got was, “If Republicans are able to confirm a justice before a new president is inaugurated, is there any legal recourse, any potential challenge to the validity of the nomination and the confirmation in court given the precedent set by the Republicans themselves, or is packing the court the most likely recourse if Republicans confirm a new justice before November?”
Amanda Tyler: I mean I could speak to this, but, Erwin, you, of course, could, too. No, there’s no recourse. You can’t go into court and challenge that. My students asked me this earlier this morning in Civil Procedure in federal courts.
Erwin and I teach, and Judge Fletcher teaches, that there are these things called political questions. I don’t like that framing of the doctrine, but the idea is where Congress and/or the executive have unlimited discretion with respect to certain powers. There’s nothing for the courts to enforce. And that’s the situation here. The president has the power to nominate and the Senate has the power to confirm.
Erwin Chemerinsky: I agree with that answer. Let me just add one interesting wrinkle that we haven’t talked about yet. I haven’t seen this written about yet. If you look at Article I, Section 5 of the constitution, it says, “Each house should be the judge of the elections, returns, and qualifications of its own members, and majority of each shall constitute a quorum to do business. The vice president doesn’t count in making that quorum.”
What if, for example, there were, say, three, but not four Republican senators and they simply don’t attend along with the Democratic senators not attending and, say, that therefore there’s not a quorum? I don’t know how all that would play out. Any challenge, I agree with Professor Tyler, would be a political question.
But I’m trying to think about is there anything to be done, because ultimately my conclusion is the same as hers. If the president nominates and the majority of the senators confirm, that person’s on the Supreme Court for life.
Bertrall Ross: That may be a possibility. Given what I’ve seen over the last nearly four years, I’m not sure that there are enough Republican senators with that degree of courage to stand with Democrats and denying the Republican Senate a quorum.
I hear what Murkowski and Collins said and it’s a nice principle position, but principle positions have been made on prior issues that have been walked back. I fear that this could be another situation in which those principle stands at the beginning are walked back later under the guise of some explanation that doesn’t hold much water. But that’s my cynicism about Republican independence amongst Congress members.
Erwin Chemerinsky: Others who want to speak in response to that question? The next question is, “Do you think it’d be less likely for a Democratic Senate and White House to add seats to the court in the likely event that one of the conservative justices, such as Justice Thomas, has to retire shortly after … after the Democrats took the White House?” Catherine or someone else that … ?
Catherine Fisk: The one thing I can say about all of this is I think what’s going to happen is a function of how much political pushback the Supreme Court feels that they face, for example, if Trump and the Senate pushed through a nominee. Lindsey Graham said people should hold him to account when he said that he was supporting the effort to block the Merrick Garland nomination and not even have a hearing. He said, “And if it happens in the future, I will take the same position.” Of course, as Bertrall pointed out, he walked that back.
What will persuade them not to act is if they think there is going to be huge political pushback to Republicans, political pushback to President Trump’s re-election campaign, and for the justices themselves. Why did John Roberts, having been a rock-solid conservative for his career, suddenly become the swing vote in a couple of high-profile cases? I think because he was worried about the institutional credibility of the Supreme Court.
So they can put some ultra-right-winger on the court, any of the people that have been named, who, for example, have used that, it ought to be permissible to prohibit the use of contraception or things like that. But in the end, they have the people to hold them to account.
The reason why the Supreme Court changed its position in 1937, after having declared fundamental aspects of the new deal unconstitutional, is because there were hundreds of thousands of people in the street because the State of Michigan was in a state of near civil unrest. Frank Murphy, then the governor, was worried about calling out the National Guard for fear that thousands and thousands and thousands of people would be shot in the streets. That’s the thing that’s going to make either the Trump administration or the Republican Party, or for that matter the Supreme Court, think more carefully.
As to, for example, jurisdiction stripping, which we talked about earlier, the reason why the Norris-LaGuardia Act of 1932 stripped federal courts of the jurisdiction to issue injunctions in labor disputes was not because of some principal concern about, gee, we ought to allow people to strike. That was part of it. But part of it was at the time United States companies were spending more money on munitions to use against their employees than the United States Army was.
That level of anxiety … And the munitions were being used in part to enforce federal court injunctions. That level of unrest winds up being a problem for elected leaders and a huge problem for the Supreme Court. In the end, that’s why I cited Mother Jones and Joe Hill, I’m afraid that’s the best remedy.
Erwin Chemerinsky: I think we have time for one more question. This seemed an appropriate one to finish, and it’s directed to you, Amanda. What was your favorite case to work on with the justice during your time as a clerk?” if you feel comfortable answering that question. “Additionally, your Atlantic article,” which, by the way, I commend to everyone; it’s just beautiful, “mentioned that a lot of your favorite memories with her as a mentor, a friend. Could you tell us another, specifically on working with her on the book together over the course of the last year?”
Amanda Tyler: So my favorite memory as a law clerk substantively, which was the question about working on a case with her, I’m not necessarily comfortable naming specific cases in which I worked with her. We’re not supposed to disclose that, although some people do. I choose to be a stickler for that confidentiality pledge I took out.
But I do remember one case, and it was a case in which I knew the court would be close. I had drawn the case. We divided up the cases in the chambers at the start of each argument session. I went after this case because it was a case that involved really important federal courts/civil procedure type institutional separation of powers questions. Not a headline-grabbing case, but a really important case. It was the kind of thing that a real law nerd like her and, if I can put myself once in the same category, me would really enjoy. And so, I went after it.
As I got into it and worked on my bench memo, I realized that I was probably going to disagree with her. So I wrote a very long bench memo to her staking out a recommendation with which I expected she would disagree. But I decided to make the case as best I could.
She would go through the cases one at a time and preparing for each week, and often that happened over the weekend. So she called me over the weekend because she was working on that particular case and she just read my bench now.
We were on the phone for two hours. I remember just going back and forth, just having the most incredible, rich, intellectual debate about what the court should do in this case. I was so flattered that she wanted to hash it out with me.
But I mean I didn’t convince her, of course, and she was the justice. I realized I wasn’t going to convince her, but I was having so much fun. I mean to get to spar intellectually with Ruth Bader Ginsburg about a shared emotion and love for procedure in federal courts and issues that don’t always grab the headlines, but are so important and so interesting, it was just a joy.
But after about two hours, I started to get tired and I decided I better just say, “Okay, justice. You’re right, I’m wrong.” As soon as I did, she said, “Okay. All right. See you at work tomorrow.” So lots of treasured memory of my time as a clerk.
She had been working on a project that is built around the conversation that we had last fall here at UC Berkeley. It is built around the conversation that we had last fall here at UC Berkeley, which is printed as part of the book project. It collects various contributions primarily from her, but some from me as well and some that we did together, that trace the arc of her career.
Then also she’s chosen her favorite opinions, and we are including those. They’re the ones of which she was most proud, and bench statements to go with those opinions that she wrote, and various other materials including materials that … It includes speeches that haven’t been published that I think are really personal and give you a really good sense of who she was as a person.
There’s one in particular that’s at the end of the book. She talks there about what I spoke about in my opening remarks. She talks very brilliantly and beautifully about how important it is that all of us take up the work of building that more perfect union. She talks about how it is our sacred bond that ties us together as Americans and it’s work that all of us have to do. And so, I was very happy to be asked about that and to get to say that as, I assume, my last words here. That’s what she would’ve wanted all of us to do now.
Erwin Chemerinsky: It’s such a perfect way to end this program. I know we’ve been spending a lot of time talking about what her departure from the court is going to name for constitutional law. We spent a lot of time talking, as we must, about the confirmation fight that is likely to come.
But ultimately I hope we can also take time, especially now, to remember her and to celebrate her life, and to constantly keep in mind how much she really was a role model for all of us in law, but what each of us can do to make a difference and how much, through law, we can change society and make it better. I want so much to thank each of my colleagues who’ve been part of the panel and thank all of you for watching.