Berkeley Conversations: Justice Ruth Bader Ginsburg, her legacy, and what may follow

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 in this country into 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 are and the key is to spend the time listening to them let me just tell you the order in which they’ll be speaking and then our goal is we want to leave a lot of time for questions as well the first speaker will be professor amanda tyler the shannon cecil turner professor of law she clerked for justice ginsburg and i should also mention that she and justice ginsburg had completed work on a book together it was based on what just ginsberg was saying when she was here last year at berkeley law the second speaker will be catherine fisk she’s the barber nectar armstrong professor of law the third speaker will be orrin kerr who’s a professor of law here and clerk for justice anthony kennedy i’m going to speak forth and offer some remarks and then we’ll hear from professor petrol ross chancellor’s professor of law professor eeny ian hey lopez 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 just as gettysburg had a special relationship to berkeley because of her relationship to permanent hill kay was a longtime professor and dean at berkeley law school that’s why it meant so much to have justice ginsburg delivered the inaugural perma hill k memorial lecture amanda what do you think was justice ginsburg’s greatest legacy what was it like to clerk for her and if justice ginsburg could somehow be here today or left us some advice what do you think she would say thanks erwin that’s a that’s a lot of ground to cover in a short time but i’ll i’ll try i actually want to start by talking about her relationship with herma in this community to make sure our students know about herma herma was one of the justices oldest and dearest friends karma was the first woman woman law dean female dean of berkeley law and 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 that she did it over my objections i really was very concerned about her traveling she was she was fighting cancer and i so desperately wanted her to come but i said you know justice really everyone will understand she it was just so important to her so important to her to honor herma and to honor her most legacy here and just to make sure that we keep telling herman’s story so i i appreciate you saying that irwin 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 mainly or in 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 and 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 and laws like the jury laws in question they communicate that women aren’t welcome to 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 more 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 and chambers the passage from deuteronomy that says justice justice thou shalt 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 to 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 and that was something that she made possible both as an advocate and as a justice we can talk about so many decisions in that in that way they go across many many fields what i loved about her legacy or what about 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 and in her opinions you see a voice a voice who gave 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 it 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 and 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 could 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 and 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 clear for her it was incredible i’ve said now in print um i mean every word was one of the greatest honors of my life um 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 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 was she did have a sense of humor the public didn’t see it very much and she was immensely kind i’ve tried 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 ways she was inspiring to all of you she was resilient she was determined and she was fundamentally profoundly dedicated to being a public service being a public servant excuse me into 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 you can make the most constructive contribution through your work and 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 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 it wasn’t just the work of the justices it was the work of everyone when she was testifying before the senate judiciary committee at her confirmation proceedings she quoted and invoked learned hand and she said the justices do not guard constitutional rights alone courts share that profound responsibility of 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 and it was also as i said a moment ago it was really important to her that people look for constructive ways to take up that 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 i like working for her like to being on a team i chose not my sport so to try and reach a more general audience but to being on a team with michael jordan she brought out the best and everyone around her i think the translation here for me would be maybe maybe being on a team with megan repino but the justice uncharacteristically once and i think only ever once used a sports analogy herself she said 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 you know sometimes you have to play a little hurt and 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 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 her legacy 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 [Applause] 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 and ginsburg argued that the policy violated equal protection the supreme court did not grant review in the case and indeed when the court did take two pregnancy discrimination cases it ruled against the female plaintiffs both under the constitution and under title vii 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 vii 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 vs 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 a thousand dollars 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 sixth month 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 passed 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 caused 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 non-traditional environment is averse to making waves and so for these reasons legislators recognize that the supreme court was wrong in ruling that title vii prohibited plaintiffs from bringing pay discrimination cases and 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 vii 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 quote close by quoting two famous labor activists mother jones martha jones told a group

of minors 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 worked 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 wrote a fellow 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 is tremendous work for lawyers and law students to do to carry on the work that ginsburg started and i am certain that she would want us to fight no matter how hard it is thank you uh thank you all for for uh inviting me to join the group here it’s awfully difficult to go uh after uh professor tyler and uh professor fisk in honoring justice ginsburg uh who had such an extraordinary career uh those those two presentations were wonderful and and i’m gonna i’m gonna take a slightly different tack i’m gonna offer um a big picture perspective on her career uh uh first and briefly and then for the rest of my remarks i’m gonna go move on to the second part of the um of of what this panel was about the where what’s the future where do we go from from here so let me start just by offering a few thoughts on the career of of justice ginsburg it’s just going to be hard to imagine a supreme court without ruth bader ginsburg i mean such a core member of the supreme court for 27 years uh and uh you know she was nominated the supreme court after a distinguished career as an advocate and a distinguished career as a judge on the dc circuit uh comes to the supreme court and is is uh confirmed by the senate by with 96 to three votes unimaginable today and for her entire career as a justice was universally respected uh for her legal talents for her work ethic uh you know if justice ginsburg saw a problem in a case there was probably a problem in the case uh so uh different justices have different you know levels of of scrutiny and care and precision and and and work ethic and justice ginsburg i think was just at the top of that uh throughout throughout her entire remarkable career in terms of her legacy i think they’re almost i 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 what a career as an advocate uh she had just just absolutely remarkable uh and then uh i think until the last maybe 10 years of her time on the supreme court i think her she was more considered a lawyer’s lawyer when i was a law clerk which was in 2003 to 2004 i thought of her i think her perception was more of a a center left almost sort of technocrat like absolutely hard-working precise detail-oriented justice um uh uh but but an institutionalist justice as well um and in the last 10 years of her her life her career on the court uh that i think shifted into more of the kind of what maybe we call the notorious rbg uh phase uh uh where there was much more of a public perception of her uh and and um you know the public attention focused on her as as uh uh uh for her role uh which was almost like a third stage i don’t think she at least my impression i didn’t have any sense um that there was a change in how she went about her job but the public perception really came forward such that you know i think for many years she was doing great work on the court without

being a center of attention and then really became a you know a a major public figure uh you know one of the most prominent people in the country uh late in her career which was really quite quite remarkable um now i want to talk about a little bit about where things may go next uh i mean we’re in a truly extraordinary situation right now it’s it’s 40 days until 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 they’re going to try majority leader mitch mcconnell is going to try as best he can to fill that as quickly as possible with a justice who’s obviously going to be you know quite different on many issues the opposite of justice ginsburg and i think the real attention is about to shift to the senate now are there enough votes uh uh you know 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 uh my best recommendation i was checking the news during this beforehand i think there have been uh two senator collins and senator murkowski who said they’re not going to so are there going to be two more votes uh on the senate side um uh perhaps romney perhaps others we don’t we don’t know that’s going to be really where i think the attention is going to come i share the uh sense that the likely replacement for justice ginsburg’s position or the the person likely to be nominated for that seat is likely to be seventh circuit judge amy coney barrett um uh 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 it 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 uh in that the presidential race had been about the president trump’s incompetence and maliciousness and complete failure uh primarily to deal with coronavirus in addition to many many other uh things and i suspect you know a a major story if not the major story going forward for the next 40 days is going to be the supreme court uh uh and we’ll see what effect this has on the election we don’t know but it may have a significant one so uh the future is you know unfortunately going to be one of a very likely uh uh you know it’s it’s not going to be a a pretty thing but um it i think boils down to senate senate positions are there going to be two more defectors or not um uh uh and what’s the senate going to do ultimately so um that’s that’s like likely the future uh sorry to mix those two i realized 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 how to answer more questions during the q a my enormous thanks to amina tyler catherine fisk and oran kerr for the great remarks and i look forward to hearing retrial ross’s remarks i too wanted to speak on the panel and 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 want 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 for no longer being on the court and third i want to talk about what’s likely to happen in the nomination and confirmation process as 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’ve talked about our importance with regard to sex discrimination i remember when i read her opinion in united states versus virginia in 1996 this was the case where the supreme court declared unconstitutional virginia military institute’s exclusion of women and she wrote the opinion in a 7-1 decision that there was unconstitutional sex discrimination there was such a sense that her entire career had brought into the court to write this important decision about gender equality under the constitution

i think of her opinions in the area of reproductive freedom in 2014 in hobby lobby versus burwell she wrote a stirring descent that really focused on the importance of access to contraceptives for women in society for reproductive control and for equality one of the last descents that she wrote just in june was in little sisters of the poor versus pennsylvania where again she stressed the importance accessibility to contraceptives she also has 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 quarter wall it’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 in churches synagogues mosques not at government meetings as i thought about these areas where her voice was so important i realized that in case we remembered she was the second woman to ever serve on the supreme court the sixth jewish justice ever to serve on the supreme court how much her sex and her religion shaped her views and 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 and it certainly led to justice ginsburg’s powerful voice in these areas well second what about the effects for 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 ledo gorsuch and kavanaugh it had john roberts who’s to be sure right of center but more of a moderate conservative and last term there were four justices who were left of center ginsburg briar cinema and kagan there were some very important decisions last term where john roberts joined together with ginsburg bryerson 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 five to four said that president trump violated the administrative procedures act and was sending the deferred action for childhood arrival program because roberts and the four liberals who were doing that or in an important abortion case june medical services versus g these five justices said the louisiana law was unconstitutional and requiring that doctors have an emitting privilege at hospitals in 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 in 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 knight might be willing to overrule roe versus way i have no doubt none that thomas toledo gorsuch and kavanaugh and with amy coney bear at her will be five votes to overrule wrote and i think they would want to do it soon while they know they have the five votes this has been 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 and just two of them was the majority roberts ginsburg bryerson and kagan justice ginsburg was much more in descent than in the majority on the roberts court but i do think shifting the ideological media on the court the center the swing justice from roberts to somebody 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 logia lego 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 with peter ginsberg passed away at age 87 and 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 have been a vacancies in the last year of president’s term in 21 of 24 the senate confirmed and three 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 refuse 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 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 has rushed through will it mean for the legitimacy of the court in light of how brett kavanaugh was confirmed just a couple 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 in the majority if it’s a tie the senate the vice president breaks the time so it would take four republican senators saying they don’t believe that president trump should be the one to fill this vacancy that we 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 as was pointed out lisa murkowski and susan collins have said they don’t believe that should be filled at least before the election but can we imagine two other republican senators being able to do this and what then happens if the republicans push through the replacement for justice ginsburg and push through somebody who’s very conservative now i actually i’m going to slightly disagree with oran kerr i think amy coney barrett is likely but if i were to give my prediction and predictions are free and worth it across i think 11th circuit judge barbara lagawa 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 and what president trump has most in mind is what will help him 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 confirmation of one of these individuals and if joe biden wins on november 3rd 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 ten hard for us to imagine there was a time when they chose to have ten justices and even number nine is a historic accident 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 pack the court and 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 or 2032 as the republicans stick the white house in 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 and that’s why i think the democrats would have to do this should the republicans push somebody through now

and i’ll turn it over to trial thank you 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 offered legacy described here today publishing newspapers and shared 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 grace civility and dignity for justice stephen breyer she was a great justice a woman of valor and a rock of righteousness justice samuel aligo in accordance with the views of countless others noted that she has been and will continue to be an inspiration for many justices referred to her dear friend as an american hero and a path-breaking champion of women justice elena kagan described ginsberg 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 protection to those once excluded justice neil gorsuch noted justice ginsburg’s many sacrifices to her country in the honor of her performance and finally justice brett kavanaugh said of her that no american has ever done more than just ginsberg to ensure equal justice under law for women justice ginsburg deserves every tribute that she has received and more and we have 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 and 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 what she had done an icon status that seemed to be a signing 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 anthony scalia at the end of his life as well the justice says rock star or superhero why it worried me with both justice 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 our servants of the people and the supreme court as it is equally important to remind ourselves our institutions delegated authority to serve the 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 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 delegated to the supreme court the authority to exercise power contrary to the majoritarian preferences of the moment in so far as such preferences contradict the super majoritarian principles of the people these super majoritarian 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 group’s vision of what should be it is often difficult for people to distinguish between the constitution super majoritarian principles and the ideological views of justices as judicial hubris derive and apart from justice veneration by the people can make the people start to think that what the justices say must reflect our super majoritarian principles even when they do not i therefore think it’s 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 and 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 and for the most part in our history justice justices have not been successful at doing so i don’t want to spread the illusion any further that justices are umpires merely calling balling 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 these include the potential crisis right in front of us the presidential election in november also the more

deep-seated crises of racial justice manifested in century of state violence that police cameras and iphones have recently made visible again persistent inequalities on the face of other statuses gender class and sexuality among many others that justice ginsburg thought to advance and the existential threat to our republic and our world and 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 it could see a standing fall and with the fall of the court will be the fall of the republic as we know it i ultimately think that judicial understanding of its role is all we can rely on right now but like many of you have little faith that justice 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 and 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 would be no clear end point to a constant tip 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 thank you bertrall thanks to each of the speakers for the wonderful presentations we have questions i’m going to access the questions now and i’ll just read them in the order as 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 or and maybe turn to you since you discussed this the most sure uh i i read what they said as as saying that whoever is elected president on november 3rd uh should be able to make that nomination so i think that holds open the possibility for uh if trump wins re-election then there then that they could move forward on the on a vote on the nomination uh but if biden wins then he would have an opportunity to nominate somebody for that spot and this the seat would not be filled in the lame duck period at least at least that’s what i think that they they both said but i’d have to go back and check the exact language does anyone else want to speak to that question the next question that i got with the replacement under the trump administration seems 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 and what they might look like do you think either of these are likely to happen does anyone want to speak towards that i think irwin since you introduced it you’d be best to start us off um a week ago saturday i participated at a conference by zoom at william and murray law school and i was on a panel and it was discussing various possible reforms for the supreme court one was what patrol talked about in terms of term limits which i favor another was about changing the court in terms of a five five five split like some professors like dan absolute argued for and also discussed was the possibility of increasing the size of the court in 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 and 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 were to push somebody through i think the democrats would then respond in 2021 if biden wins in the democratic senate by increasing the size of the supreme court obviously it’s controversial and petrol has talked about some of the downside but i think the democrats would feel they have to do something in like 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 3 section 2 that says the supreme court’s appellate jurisdiction with such exceptions and regulations as congress shall make there have 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 um require under god in the pledge of allegiance but none of these bills have ever gotten adopted is it possible that a democratic congress the democratic president might try to restrict supreme court jurisdiction certainly but there’s the same downside that patrol talks about once that pandora’s box is open it can then be used in the future by republican congress and republican president that’s why i think the more likely course and the course is most likely to get where we want to with regard to the supreme court in the constitution would be expanding the size of the court irwin could i offer a response to that of course so i i share professor ross’s view that uh the answer here is term limits and not changing the size of the supreme court and let me explain a little bit about why in 2013 2014 there was a major public debate over whether justice ginsburg should resign she would have been no a replacement would have been nominated by uh president obama and there was a democratic senate uh and so the argument made perhaps most prominently by our very own dean champarinski um was that justice ginsburg you have to resign because here’s what might happen there might be a republican president who’s nominated and that they would put a republican on the court to replace you justice ginsburg uh rebuffed those arguments and seemed quite confident that a a a democratic president would be elected in 2016. uh and so she she she made a choice um to stay on the court rather than step down and be replaced by an obama nominee and if she had lived a few more months she very at least the polls suggest likely would have been replaced by another democratic nominee uh uh uh under under hopefully president biden um and if that happens it seems to me that the rule would be um uh uh you know it’s it’s 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 if it’s illegitimate to reply and i’m i 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 uh g chemistry and others um as a problem in 2014 and i i think this does go back to echo professor ross to the problem that there should be supreme court term limits it’s it’s exceedingly odd that we have a system where the future of the supreme court uh and the direction of u.s politics more broadly is contingent on on how long one individual um uh uh uh uh stays able to remain on the supreme court i think that’s just it’s it’s just a a i think it’s a system that’s hard to defend and should be changed may 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 time at the aclu and on the supreme court i’d love to hear more about her time on the dc circuit go ahead amanda you know a few people remember that she wrote the decision in chevron that um sorry i have my support animal at my feet and he’s being a little loud shaking his tail that she wrote she wrote the chevron decision that the court overturned so for all of you and i hope a lot of you who have or are studying administrative law um she actually came out the other direction of that one so that was one of her biggest decisions there it’s interesting if you look at the broad arch of her decisions you know 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 percent and 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

her particular disposition when she was there but i think that feed it 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 uh people thought she was too moderate and that was mainly a result of a 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 does anyone 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 of the libya the nomination confirmation in court given the precedent set by the republicans themselves was packing the court the most likely recourse if republicans could form a new justice before november i mean i could speak to this but urban you of course could too um no there’s no there’s no recourse you can’t go into court and challenge that um 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 i don’t like that framing of the doctrine but the ideas 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 i agree with that answer let me just add one interesting wrinkle that we haven’t talked about yet and i haven’t seen this written about yet if you look at article 1 section 5 of the constitution it says each house shall be the judge of the elections returns and qualifications of his own members and a 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 in 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 a majority of the senators confirm that person’s on the supreme court for life and that that that may be a possibility i just 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 republican the republican senate a quorum um i hear what murkowski and collins said and um and it’s a nice principal position but principal positions have been made on prior issues that um have been walked back and i fear that this could be another situation in which those principles stands at the beginning are walked back later under the guise of some explanation that doesn’t hold much water but that’s kind of my cynicism about republican independence in amongst congress members others who want to speak in response to that question the next question is do you think it would be less likely for a democratic senate in white house to add seats to the court in the unlikely event that one of the conservative justices such as justice thomas happened to retire shortly after the i lost the rest of after the democrats took the white house canton or someone else you know 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 if for example if trump and the senate push through a nominee you know 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 to have a hearing he said and if it happens in the future i will take the same position and of course as patrol 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 views 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 and frank murphy then the governor um 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 you know the reason why the norse laguardia act of 1932 stripped federal courts of the jurisdiction to issue injunctions in labor disputes was not because of some principled concern about you know 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 joan jonah joe hill i’m afraid that’s the best remedy i think we have time for one more question and this scene 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 and additionally your atlantic article which by the way i commend everyone it’s just beautiful mentioned a lot of your favorite memories that there was a mentor friend could you tell us another specifically in working with on the book together over the course the last year so my favorite memory as a law clerk substantively which was the question about working on a case with her um excuse me 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 but i do remember one case and it was um 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 and i went after this case because it was a it was a case that involved really important federal courts slash sole procedure type institutional separation of powers questions but really um not a headline grabbing case but a really important case that was the kind of thing that a real law nerd like her and if i can put myself once in the same category as her me would really enjoy and so i went after it and 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 and 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 benchmark and we were on the phone for two hours i remember just going back and forth this is having the most incredible rich intellectual debate about what the court should do in this case and i was so flattered that she wanted to hash it out with me

um but i i mean i didn’t convince her of course and she was the justice and uh i realized i wasn’t going to convince her but i was having so much fun i mean to get to spar intellectually with ginsburg about a shared devotion and love for you know 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 and and as soon as i did that she said okay all right see you at work tomorrow so that’s a treasured memory of my time as a clerk she and i’ve been working on a project that is is built around the conversation that we had last fall here at uc berkeley which is printed as part of the of the book project um and and it collects uh various contributions primarily from her um but some from me as well and some that we did together uh that sort of traced the arc of her career and um and 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 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 and there’s one in particular that’s at the end of the book and she talks there about what i spoke about in my opening remarks she talks very poignantly and beautifully about how important it is that all of us excuse me take up the work of building that more perfect union um she talks about how it is our sacred bond that ties us together as americans and um 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 i assume my last words here that’s what she would have wanted all of us to do now such a perfect way to end this program i know we ended up spending a lot of time talking about what her departure from the court’s going to mean for constitutional law 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 and remember her and to celebrate her life and to constantly keep in mind how much he 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 for being part of the panel thank all of you for watching