47. Fifteen Minutes of Feminism: A Year After RBG’s Death, What’s Next For The Court? (with Irin Carmon)

With Guests:

Irin Carmon, senior correspondent at New York Magazine and the co-author of Notorious RBG: The Life and Times of Ruth Bader Ginsburg.

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In this Episode:

It’s been just over a year since Justice Ruth Bader Ginsburg died. We reckon with recent revelations and ask the important questions: How did her death shape the current fight around abortion rights and other issues? Should she have retired? And what comes next at the Supreme Court?

Background Reading:

Transcript:

00:00:11.2 Michele Goodwin:

Welcome to Fifteen Minutes of Feminism, part of our “On the Issues with Michele Goodwin” at Ms. Magazine platform. We are a platform that reports, rebels, and you know we tell it like it is. Joining me today is Irin Carmon. Irin is a senior correspondent at New York Magazine and the co-author of Notorious RBG: The Life and Times of Ruth Bader Ginsburg. 

It’s been just over a year since Justice Ginsburg passed away. So, in today’s episode, we’re reckoning with her legacy, looking at the excellent, the brave, the good, and the bad, and ask the important questions. How did her death shape the current fight around abortion rights and other issues? Should she have retired, and is there a silver lining or a solution to the challenges that are currently being seen with the United States Supreme Court as being out of touch and out of reach of the average American?

Helping me to sort out these questions, and even more, is an incredibly special guest. Thank you, Irin, for joining me. Irin, you literally wrote the book on Ruth Bader Ginsburg, and so, many people are curious. A year after her death, how has the court changed? Where does it stand right now?

00:01:32.6 Irin Carmon:

Well, our book was called Notorious RBG, in part, inspired by the week that Justice Ginsburg spent dissenting from the bench in record cadence, especially in the case Shelby County versus Holder, and the reason I start by answering your question that way is because she rose to prominence, in part, in loss. The court was, as you know, deeply conservative before, in a way that was intensified after Bush v. Gore, that often left her in the minority 5-4.

But as we see from the Supreme Court, it could always get worse. So, a decades-long project to dismantle much of the advances of the 20th century has culminated now in Donald Trump having named three members of the U.S. Supreme Court, including Justice Ginsburg’s successor, Amy Coney Barrett, who stands in total opposition to everything that she fought for her whole life, and in fact, the Supreme Court is poised to take on, again, decades of abortion jurisprudence.

The fragile architecture…it’s already pretty rickety, but the fragile architecture that protects abortion rights in the most hostile states is seemingly about to be dismantled. So, I would say that it is a decades-long trend that the right has single-handedly focused on accomplishing of what we are apparently about to see today, and that that has accelerated in the wake of Justice Ginsburg’s death.

00:03:11.0 Michele Goodwin:

Her death, in some ways, was an accelerant on the things that were already in motion, and I want to actually bifurcate now, because I want to take up RBG’s legacy on the court as well as what’s going to be coming next. So, very recently, there has been some critique about Justice Ruth Bader Ginsburg, about whether she stayed on the court too long, and then what some are saying are shocking details from Katie Couric in a forthcoming memoir, revealing that Justice Ruth Bader Ginsburg had some startling views about Black athletes and their kneeling on football fields. Can you unpack a little bit of that?

00:03:54.6 Irin Carmon:

Yeah. Obviously, there’s a lot there to unpack. I want to start with the retirement question, just because, in some ways, it’s…I don’t know if it’s easier, but I think I have a clearer read on it. So, as a person living in the world with beliefs and the ability to have kind of historical hindsight, it is obviously clear that Justice Ginsburg should’ve retired. As her sometime biographer, I can try to think about why she didn’t.

00:04:26.0 Michele Goodwin:

Yeah, why didn’t she?

00:04:27.4 Irin Carmon:

So, I think this is somebody who accomplished everything that she accomplished by being incredibly stubborn and not listening to anybody else’s vision of what she was going to be able to accomplish, and so, that was the trait that had gotten her through her husband having cancer, her own bouts with cancer, the doors slammed in her face, 100 years of precedent that said that women did not deserve equal stature under American law or the Constitution.

All of these ways in which she had singularly beat the odds, I think, gave her a sense that she could continue. I also think, like many women, she did not get an opportunity to fully come into her own professionally or politically until late in life. So, she was 60 years old when she was on the Supreme Court. I think during the time that she was dissenting, she was hugely angry about what was happening on the Supreme Court.

And I think she thought that she might be able to stick around long enough to help fix it. If Merrick Garland had been confirmed to the Supreme Court instead of, you know, blocked and ignored by Mitch McConnell when President Obama nominated him, then we would have come into a situation, very likely, where Justice Ginsburg would’ve been a senior justice in not the minority, but the majority, or if Hillary Clinton had been able to appoint somebody to that seat.

So, I think she was a very bad political pundit. She believed that…like many people, but in her case, to catastrophic effect. She believed that Hillary Clinton would win. I think she hoped that Hillary Clinton would appoint her successor. She actually said a few times that she thought that Hillary was going to win, and she was wrong.

00:06:23.6 Michele Goodwin:

She was wrong.

Ruth Bader Ginsburg's Legacy—as a Lawyer, on the Bench and in Dissent
Ruth Bader Ginsburg at a lunch with Wake Forest law students, 2005. (WFULawSchool / CC BY-NC-ND 2.0)

00:06:24.4 Irin Carmon:

And she came really, really close to outliving the Trump Administration, and I think it will always be one of the great historical tragedies. You know, I think also about…and then this is something that was cited when people urged her to retire, but Thurgood Marshall retiring due to ill health just weeks before Bill Clinton won the election and being replaced by Clarence Thomas, again, somebody completely antithetical to everything Thurgood Marshall fought for, and so here we have a very similar example. If she had only been able to hang on a little bit longer, we might’ve seen a different set of numbers. Now, I think that the balance of the…

00:07:07.6 Michele Goodwin:

But that is complicated, though, right? It’s complicated.

00:07:09.8 Irin Carmon:

Yeah. Yeah, but I mean, look, that’s the big picture. The balance of the court was over when Trump won. The election to decide the direction of the Supreme Court was in 2016 when Scalia’s seat had remained open because of the intransigence of Mitch McConnell. When Anthony Kennedy retired, the Supreme Court was lost. I mean, if people are saying now we can no longer rely on John Roberts to occasionally break with the other conservatives and that’s RBG’s fault, that is true, but this was over when Trump won because they had the votes that they needed.

00:07:50.4 Michele Goodwin:

There’s something that’s difficult sometimes probably when people idolize their heroes, and certainly, RBG, there’s a reason for many people to respect her legacy, to find that her legacy significantly shifted jurisprudence on the court, and recently, Katie Couric has revealed that there was information that she withheld from…a full quote from Justice Ginsburg, and it related to the matter of Colin Kaepernick and other football players kneeling on the field, and the quote is actually still somewhat hard to get…

You know, who knows what Katie Couric’s frame of mind was when she was talking to Justice Ginsburg or how she responded, perhaps, in shock to Justice Ginsburg saying something to the effect that the kneeling showed a contempt for government that has made it possible for their parents, meaning these black athletes’ parents and their grandparents, to live a decent life. 

How do we reconcile that? And it also brings to mind an op-ed that Paul Butler wrote some years ago about how Justice Ruth Bader Ginsburg rarely, if ever, hired Black law clerks.

00:09:14.0 Irin Carmon:

Yeah, I believe it was… I believe it was Paul Butler. Not to say that that’s…that’s a piss poor record. I don’t think there’s any sugarcoating that. So, I think, you know…well, first, I want to touch on you mentioned people idealizing her and idolizing her. I think it speaks to…and of course, our book was part of this. I don’t think that that’s the reason that she didn’t retire. I just want to be clear on that before we get into the Katie quote, because, first of all, the historical record shows that that can’t be true.

The first calls for her to retire were in 2009 when Obama was seated and inaugurated, and there were many calls for her to retire, and the pushback didn’t come from her fans. It actually came from feminist legal journalists like Linda Greenhouse, Emily Bazelon, Dahlia Lithwick, all of whom wrote that it was sexist to suggest that Justice Ginsburg retire. The fandom only started in the summer of 2013, and our book only came out in 2015 after Democrats had lost the Senate.

But that said, you know…and I think it is important. As much as I’m being critical here of Justice Ginsburg, I don’t want to gloss over the reasons that people admired her, because I think that they’re important, and they’re not just about her. You know, they’re also about a vision of somebody maintaining having been a feminist litigator, having worked in the trenches at the ACLU, and having unapologetically continued in that spirit as a justice to draw attention to grievous wrongs, like the Shelby County versus Holder decision, like Carhart versus Gonzales, the abortion decision.

Somebody who was always willing to use their voice in support of women’s rights, and in many cases, racial justice. All of which makes the other elements that you mentioned, the hiring record on clerks, the quotes that the…the ones that appeared were pretty bad to begin with, right? So, this is just even more. I don’t think it actually materially changes matters as much as it just sort of intensifies the existing disappointment. So, how do we hold those two things together? Well, I mean…

00:11:24.1 Michele Goodwin:

Yeah, how do we?

00:11:25.5 Irin Carmon:

I don’t think that I am going to break any news to you here to say that even some of the most exemplary white feminists have been guilty of racism. At best, racial blind spots, but let’s just call it racism. In the case of Justice Ginsburg, I think it’s hard to take because there is actually a huge body of work in which she recognizes both structural bias and personal bias and you know, has written these stirring dissents about…a quote from one of her affirmative action dissents that comes to mind is, “stains of racial oppression are still upon us.”

When I interviewed Justice Ginsburg and asked her about this in 2015, she said people who think we can wave a magic wand and generations of oppression disappear are blind. I don’t think she knew anything about who Colin Kaepernick was or what the protest was about. I think, in her mind, it sort of pushed this button of…and you’ll be very familiar with this. The kind of, like, defensive, crouched liberalism, more patriotic than not, because to say that the protests of Colin Kaepernick and his fellow Black athletes was about the government, I don’t know. Maybe, in the broad sense, it’s about government.

But it was about police violence, to my understanding, and so, you know, later on, she said that she was unaware of the protest. When she apologized for the comments that were published, she said that she was unaware of the nature of the protest and that she shouldn’t have spoken so dismissively. I think, one, she didn’t understand the content, and two, the kind of like mid-century liberal apologize for the left…say, I am patriotic, I don’t burn the flag…she even mentioned flag burning, I think, in her extended comments.

Somebody else said to me, you know, I think that this also comes out of a kind of immigrant mentality, and I’ll note that one of the things that’s really offensive about her quote is that she imposes the frame of immigration on the descendants of enslaved people, which is completely inappropriate and historically inaccurate.

But I think, in her mind, it was this notion of for her parents, both having been immigrants from the shtetls of Eastern Europe and America having represented a break from the oppression that they experienced where they came from and having voluntarily come here, the sort of I am the immigrant who loves America more than anyone else part kicks in too…again, none of this, in any way, excuses the racism of her remarks, but  as I was trying to reconcile it with what else I knew about her…

Ruth Bader Ginsburg at the Senate confirmation hearing for her appointment to the Supreme Court on July 21, 1993. (Wikimedia Commons)

And then to not see, you know, the many excellent candidates who could’ve clerked for her, I think is, in part, a reflection of, by the time she was a Supreme Court justice, I think she had a pretty closed circle of a certain number of law professors that she relied on for recommendations. I think it would’ve been incumbent on her to look outside of that, because I know Justice Sotomayor, for example, has been able to find very diverse clerks. Actually, Justice Thomas has found pretty diverse clerks. It’s not difficult to find…

00:14:32.5 Michele Goodwin:

Everyone has. I mean, even Brett Kavanaugh, which was part of the article that was written by Paul Butler, published as an op-ed. So, clearly, many people have.

00:14:45.0 Irin Carmon:

Yeah. Right, and it’s tragic because I think that somebody like her, who experienced so much discrimination, should’ve known better than anyone else to make sure that her own biases weren’t limiting who she was giving this enormous opportunity to, but the reality is she didn’t. She continued to make that mistake again and again, and I think she should be held accountable for that.

00:15:09.2 Michele Goodwin:

So, it’s very interesting, and we’ll move on from this part, but The Daily Beast writes that Katie Couric’s RBG cover-up shows how we ended up with Trump, and what you’ve said is that that’s probably not true at all, by her failure to not include the full quote, and some have said that this is really a mark against Katie Couric, and it’s not great for Ruth Bader Ginsburg, and it shows various biases, but you can’t hang the hat that, somehow, the election would’ve turned out differently had Katie Couric actually published the full quote.

00:15:45.0 Irin Carmon:

Yeah, I don’t really understand the argument with respect to the election. I don’t think that…look, I don’t think that RBG changed her mind about retiring based on one external pressure or another. I think she made up her own mind when people in the legal academy, who she respected, including your colleague Erwin Chemerinsky called for her to retire.

00:16:06.2 Michele Goodwin:

Erwin did. He received death threats.

00:16:09.6 Irin Carmon:

Yeah. Right, and that’s why I don’t understand this notion that everyone was afraid to tell her to retire. She was asked about it in every interview. I asked about it when I interviewed her. Many op-eds—Professor Randall Kennedy wrote op-eds… there were many calls for her to retire. There was a whole meta debate about it, and she made her decision on her own terms. It was the wrong decision, but it was not because people admired her that she didn’t retire. I’ll note, by the way, also, that Stephen Breyer is not retiring, despite many even stronger calls to retire, and he doesn’t even have a fan club.

Justice Stephen Breyer speaks at the Brookings Institution in 2016. (Brookings Institution / Flickr)

00:16:41.2 Michele Goodwin:

What’s the future of the court— of the kinds of cases that the court’s looking at now, and what do you see is necessary to kind of right a ship? So many people are now saying that they don’t have the confidence in the court that they used to. I know that’s a lot right there, Irin, and you can attack it however you want.

00:17:00.2 Irin Carmon:

Yeah, I mean, I think that, in an ideal world, court expansion would be on the table legitimately for all the reasons that Elie mentions, but it’s not in the world that we live in. I mean, unfortunately, we’re in a world where the imaginations are big and the ideas are persuasive, but the politicians that are in place are trying to cramp them as much as possible, and the legal establishment.

But again, I don’t think that there is any political will, either in the presidency or in Congress, for this, and if you see what’s going on in Congress right now, you can see that even just trying to recognize the reality of many people’s lives and legislate as follows has been such an incredible lift, and this looks more impossible by the days. You mentioned the diminished esteem of the court. For the longest time, there has been a kind of durable, fond impression of the Supreme Court among liberals and among Democrats.

And I think that that’s because of a nostalgia for things like Brown v. Board of Education, Roe v. Wade, and then, you know, kind of being buttressed by things like Obergefell, the gay rights decision. The Supreme Court may have, you know, doled out some advances for marginalized people over time, but I think the mass has switched, to mix my metaphors, and I think that if progressives broadly start to be disillusioned with the Supreme Court and that becomes a generalized feeling, there is at least some possibility that the Supreme Court will be attuned to backlash and its reputation.

This is a short-term thing. In the long term, only elections and some, you know…I would say we can’t really predict the course of history. We could not have predicted, for example, that Scalia would die in February of 2016. We couldn’t have predicted many things. So, I think that it’s possible that history will surprise us, but I think right now, citizen pressure, the public’s pressure on the Supreme Court, is kind of the best lever that we have because I do think…I’m not really sure which ones are going to be attuned to it.

John Roberts, shockingly, has now become sort of like…you know, the court has moved so far to the right, that it makes John Roberts look kind of like he’s on the left. He’s right in the middle, but it is possible that, Gorsuch, Barrett and Kavanaugh might be able to be appealed to, to at least go slowly, and if they slow it down a little bit, then there might be an opportunity for a surprise death. How’s that for optimism?

00:19:40.7 Michele Goodwin:

How is that? And we do ask a question of all of our guests, and we’re going to get to that in just a second, which is silver linings, but before I do, are there any particular cases that people should be paying attention to? And people are already talking about the abortion cases. So, Dobbs, absolutely. Any others that folks should be paying attention to?

00:20:03.6 Irin Carmon:

Well, to me, you know, Dobbs is dwarfing so much else of my attention. I’m interested to see if the Texas case ends up getting consolidated with Dobbs, it’s the six-week infamous bounty hunter case. The Supreme Court has made some moves in the last couple of days that suggest that maybe they will seek to combine them. Professor Steve Vladeck actually speculated that maybe the court will want to split the difference somehow to say that they’ll uphold the 15-week abortion ban out of Mississippi and strike down the six-week ban in Texas that’s enforced by private vigilante citizens.

Either result, any result, would be catastrophic, but it might allow the public…it might allow certain people in the press to report it as a moderate result. So, I think anybody who is listening right now who is passionate about abortion rights, which I have to think is probably everyone listening right now, should not be fooled. Anything that takes away the viability standard that has precariously held together abortion rights in this country would be a giant sea change that would leave a lot of people’s rights out in the cold.

00:21:11.8 Michele Goodwin:

Well, Irin, we do come to this point in the show, Irin, where we ask people, well, what’s the silver lining coming forward? And it’s been pretty heavy so far.

00:21:21.9 Irin Carmon:

Yeah.

00:21:22.9 Michele Goodwin:

Yeah, but is there a silver lining that you see that we can hold out hope for, or at least reframe exactly what we’re seeing or what we’re being told?

00:21:34.2 Irin Carmon:

I think a silver lining is that the activists who are working on the ground and the young people who, you know, immediately went to protest outside of the Supreme Court, the people who are helping Texans leave the state in order to get abortions are just enormously inspiring, and every day, every week, things have changed dramatically on the ground, thanks to the courts kind of volleying the case back and forth, and so, I do think that a silver lining is that there is so much good work being done to try to rise from the ashes of all of these different legal maneuvers to actually help people get care. Not everybody, but I think the efforts that are happening on the ground are a definite silver lining.

00:22:17.7 Michele Goodwin:

Thank you so much. It has been such a pleasure having you on this show. It’s gone by way too quickly, and I would love to do it again. You’re just so brilliant, and I love everything that you write, and so, we will be in touch, and looking forward to you coming back on the show. Thank you so much.

00:22:36.2 Irin Carmon:

Thank you so much for having me.

00:22:38.1 Michele Goodwin:

Guests and listeners, that’s it for Fifteen Minutes of Feminism. I want to thank my guest, Irin Carmon, for joining us and being part of this critical and insightful conversation, and for more information about what we discussed today, head to MsMagazine.com, and be sure to rate, review, and subscribe to “On the Issues with Michele Goodwin.” Make sure you look for more Fifteen Minutes of Feminism as part of our “On the Issues” platform at Ms. Magazine.

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This has been your host, Michele Goodwin, reporting, rebelling, and telling it like it is. “On the Issues with Michele Goodwin” is a Ms. Magazine joint production. Kathy Spillar and Michele Goodwin are our executive producers. Our producers for this episode are Roxy Szal and Oliver Haug. Our social media intern is Lillian LaSalle. The creative vision behind our work includes art and design by Brandi Phipps, editing by Will Alvarez and Kyle Goode, music by Chris J. Lee and social media assistance from Lillian LaSalle. Stephanie Wilner provides executive assistance.