On Constitution Day, September 17, the National Constitution Center awards the 2020 Liberty Medal to Justice Ruth Bader Ginsburg for her efforts to advance liberty and equality for all. As part of the Liberty Medal celebration—and the Center’s yearlong Women and the Constitution initiative celebrating 100 years of women’s suffrage—this podcast explores the justice’s living constitutional legacy both before and after joining the Supreme Court bench, including her trailblazing work as a lawyer advocating for gender equality, then as an associate justice writing landmark majority opinions in addition to her well-known dissents, and today as cultural and constitutional icon who continues to inspire generations of Americans. Host Jeffrey Rosen is joined by Kelsi Corkran, head of the Supreme Court practice at Orrick, and University of California Berkeley Law Professor Amanda Tyler, who both clerked for Justice Ginsburg.
FULL PODCAST
PARTICIPANTS
Kelsi Brown Corkran is head of the Supreme Court practice at Orrick. She was formerly a lawyer with the U.S. Department of Justice’s civil appellate division, and worked in the Communications Office of the White House’s Executive Office of the President on judicial confirmations. She clerked for Justice Ginsburg from 2013-2014.
Amanda Tyler is Shannon C. Turner Professor of Law at the University of California Berkeley School of law. Her forthcoming book, co-written with Justice Ginsburg, is called, In Conversation with RBG: Pursuing Gender Equality Through Her Life and Work. She’s also the author of the book Habeas Corpus in Wartime which she discussed at the National Constitution Center last year. She clerked for Justice Ginsburg from 1999-2000.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
ADDITIONAL RESOURCES
- Frontiero v. Richardson (1973)
- Weinberger v. Weisenfeld (1975)
- United States v. Virginia (VMI case) (1996)
- Ledbetter v. Goodyear Tire and Rubber Company (2007)
- McIntyre v. Nicastro (2011)
- Burwell v. Hobby Lobby (2014)
- The American Legion v. American Humanist Association (2019)
This episode was engineered by David Stotz and Greg Scheckler and produced by Jackie McDermott. Research was provided by Alexandra "Mac" Taylor, Ashley Kemper, and Lana Ulrich.
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, President and CEO of the National Constitution Center. Welcome to We The People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit, chartered by Congress to increase awareness and understanding of the Constitution among the American people.
On Constitution Day, September 17th, the National Constitution Center awards the 2020 Liberty Medal to Justice Ruth Bader Ginsburg. As part of our Liberty Medal commemoration, this podcast explores the Justice's constitutional legacy, both as an advocate and a Supreme Court Justice. I'm honored to be joined by two former clerks for Justice Ginsburg.
Kelsi Brown Corkran is head of the Supreme Court practice at Orrick. She was formerly a lawyer with the U.S. Department of Justice's Civil Appellate Division, and she worked in the Communications Office of the White House, Executive Office of the President on Judicial Confirmations. She clerked for Justice Ginsburg during the 2013 term. Kelsi, it is wonderful to have you on the show.
Kelsi Brown Corkran: [00:01:09] Thank you for having me. This is great.
Rosen: [00:01:12] And Amanda Tyler is the Shannon C. Turner Professor of Law at the University of California, Berkeley School of Law. Her forthcoming book, co-written with Justice Ginsburg, explores the Justice's pursuit of gender equality through her life and work. She's also the author of the book Habeas Corpus In Wartime, which she discussed at the National Constitution Center last year. She clerked for Justice Ginsburg in the October 1999 term. Amanda, thank you so much for joining.
Amanda Tyler: [00:01:40] Thank you, Jeff. It's a privilege to be with you.
Rosen: [00:01:42] Well, let's begin with the Justice's towering legacy as a Supreme Court advocate. If Thurgood Marshall was the most influential advocate for racial equality before the Supreme Court of his time, Justice Ginsburg is the most influential advocate on behalf of gender equality of our time. Kelsi, you've studied the Justice's legacy as an advocate. You've listened to her Supreme Court oral arguments. How would you describe what she was like as an advocate? And what her legacy as an advocate is?
Corkran: [00:02:15] She was, I think, above all, strategic. The Justice, I mean, at the time, a lawyer, recognized that the appetite of the court for moving forward in terms of gender equality was small. And so, she chose a litigation strategy that was quite novel at the time. She… a number of her cases that she brought in the early '70s focused instead on women as, as plaintiffs seeking to vindicate their own rights on men.
So the Justice's first case before the court was one where she was just on the briefs. But she soon got to argue, in a case called Frontiero, and it was interesting. If, if you've listened to Supreme Court arguments today, they are a very hot bench. There is this back and forth between the justices. I remember my first argument. I think Justice Kennedy cut me off about 15 seconds in, and then it was just back and forth, for the rest of the 30 minutes.
For Justice Ginsburg's first argument, she did not get a single question. It is her speaking for 10 minutes straight. Her voice is small,l but strong. She doesn't hesitate, you know, I having spoken to her and, and, yeah. I'm sure she was quite nervous at the time. It doesn't come through.
I, you know, I think the, the fact that the Justices didn't ask her any questions is maybe partly attributable to the fact that the bench has become more hot over the years. There was generally less back and forth at that time in the '70s. But I think it was so unusual at the time to have a woman at the podium that they weren't quite sure what to do. Perhaps interrupting her seemed impolite, which would have been reflective of exactly the sort of gender inequality that the Justice was concerned about.
So many of her cases focused on this idea that, I think one of the, the opinions described it as romantic paternalism. The idea that women need to be protected from men. And so, I see that first argument, that romantic paternalism is there. They aren't willing to engage with her, and kind of have that rough and tumble back and forth, that they would typically have with the male advocates.
It didn't throw her off. She just kept speaking and, and telling her truth. And it was, it was really powerful. And then I think her second argument, she… it was maybe the last two minutes, she got her first question. And so, it was unusual, but, she handled it very gracefully.
Rosen: [00:05:04] Listeners can hear Justice Ginsburg's oral arguments online and also in the podcast, The Ginsburg Tapes. Amanda, Justice Ginsburg in her arguments famously represented men who'd been disadvantaged by laws that paternalistically favored women. The Stephen Wiesenfeld case is a famous one where, a man who wanted to care for his son after his wife died was unable to get survivor's benefits because they were based on the stereotypical assumption that women would be the surviving caregivers.
Sum up, if you can, the essence of Justice Ginsburg's constitutional achievements in arguing for high scrutiny for discrimination on the basis of sex.
Tyler: [00:05:56] You have to take the long arc of studying the development of how the Constitution was thought to apply to gender discrimination in the period leading up to when she became an advocate. So, it wasn't long before she was born that the Supreme Court had issued opinions saying that women really didn't have the temperament to be lawyers, never mind have equality under the law. Even as late as the 1960's, the Court was upholding discriminatory laws, including those that banned women from serving on juries in communities.
So, when she comes along in the 1970's, she briefs 10 Supreme Court cases on behalf of parties challenging gender discrimination, as part of her work with the American Civil Liberties Union. She presented oral argument in six of those cases. She prevailed in seven of those cases, one of those cases became moot. That is to say, it sort of resolved itself.
That's an extraordinary track record. And by the time she's put on the bench by President Carter on the D.C. Circuit, the, the face of the law had changed in this country, such that it was no longer okay for governments to write laws that discriminated against the genders. Or, or I should say more generally, embraced outdated gender stereotypes.
And when you listen to her oral arguments, as Kelsi was saying, it's really extraordinary. It's as though she was holding court herself. She was educating the all-male bench about how these laws affected both, as you say, men and women. And didn't allow either to achieve their full potential. The Stephen Wiesenfeld case is a perfect example of that.
Another thing I love about listening to her arguments is that you hear someone with absolutely encyclopedic knowledge of the field, who is just really opening the eyes of the court, of the justices to the lived experiences of people who are affected by these laws. And shows how gender discrimination running against both, again, men and women, hold them back from reaching their full human potential.
Rosen: [00:08:25] Kelsi, the Justice's vision as an advocate, that discrimination on that basis of sex should be treated nearly as skeptically as discrimination on the basis of race, was codified in her landmark majority opinion in U.S. versus Virginia in 1996. And in that opinion, she wrote, "Sex classifications may not be used as they once were to create or perpetuate the legal, social, and economic inferiority of women." Tell us more about VMI, what it meant to Justice Ginsburg, and how it nearly achieved her goal of strict scrutiny for gender discrimination.
Corkran: [00:09:06] Yes. So, so, the VMI case arose in 1996. The issue there was quite simple. VMI was a publicly funded school that excluded women. And so interestingly there, the, the Justice Department, the federal government, was challenging the exclusion of women from VMI. And, I think that was probably particularly poignant to Justice Ginsburg, as she had often butted against the federal government, in her cases in the 1970's.
But this was now a more progressive Clinton administration that was willing to take a stand for gender equality in this particular case. And there are a number… it was, I… just such a joy for her in a number of ways. Ultimately, she was able to write a majority opinion, that, in a seven-to-one decision. I think Justice Thomas was recused from that case, because his son was at VMI. And Justice Scalia dissented.
But she was writing for all of the other justices, and, and holding as you say, Jeff, that this sort of, discrimination among the genders was not acceptable. And what's really terrific is if you, as you go through the opinion, she is summarizing her own legacy. She starts with the, the first case in the nation's history to recognize that gender classifications are, are unconstitutional, citing Reed v. Reed, which was one of her cases. And then she goes onto site Califano v. Goldfarb, the Wiesenfeld case. It's, it's her history. It's, it's her accomplishments during the 1970's.
And now, she is not the advocate. She is sitting on the court, and she is codifying, as you said, Jeff, all of this into law. It was really, an extraordinary moment for her.
Rosen: [00:10:37] It is extraordinarily moving to read VMI, as you say, Kelsi, and to see how it sums up her judicial philosophy. She often uses the word embracive, and that's her word to describe how the Constitution came to embrace previously excluded groups. And in VMI, she says, "A prime part of the history of our Constitution is the story of the extension of constitutional rights and protections to people once ignored or excluded. The Virginia Military Institute's story continued as our comprehension of we the people expanded."
Amanda, tell us about the Justice's vision of a more embracive or expansive conception of equality, coming to embrace previously excluded groups and how that is so beautifully expressed in VMI.
Tyler: [00:11:43] I think that is the animating theme of her life's work. It is building that more perfect union. Her work as an advocate was to bring attention to the fact that women, too, are protected by the Constitution. And her work on the bench has been to bring light to the fact that it's not just for women. It's not just for men. It's for all races. It… the Constitution governs immigrants, and it protects people both rich and poor, working class and highly educated.
I think when the dust settles and we go back and we read her opinions from a long ... I mean, we're now, I think in the 28th year, she'll be starting her 28th term on the court. When we go back and we review all of her opinions, what we're gonna see is someone who understands lived experiences of a very broad swath of American society. And she's been working tirelessly to make sure that the Constitution leaves no one behind. That it is everyone's document, and it belongs, as you say, to we the people.
Rosen: [00:12:55] Understanding lived experiences, that's such an important aspect of her legacy. And for her, the plaintiffs in these cases were never abstractions. They were real people who she got to know. She became close to Stephen Wiesenfeld. She performed his second marriage when he found the love of his life, and she also married his son Matthew. She kept in touch with all the plaintiffs in the cases, and for all of them, there was the goal of creating what she called full citizenship stature. Equal opportunity to aspire, achieve, participate in, and contribute to society, based on their individual talents and capacities.
That's a quotation from VMI as well. Kelsi, on the, on the court, the Lilly Ledbetter case is, one of the most well-known examples of a statutory case. In other words, not interpreting the Constitution but a federal statute, where she insisted on equal treatment for women. That was in a dissent, but it was eventually codified by Congress when Congress overturned the majority opinion in Ledbetter.
Tell us about Ledbetter and, and how it expresses the Justice's judicial philosophy.
Corkran: [00:14:12] Yes. So, I, I, as you said, I like to think of Ledbetter, and I think this is fair, as, as a victory for the Justice. One of her great victories, even though initially she was writing as a dissent. So, this was a statutory case, under Title VII, the federal anti-discrimination law, where Lilly Ledbetter had been working, in a factory with mostly men. receiving her paycheck, at some point, she gets an anonymous note letting her know that for years, she has been paid significantly less than the men doing the same job as her.
So, she brings suit, and the question is, can she recover for discriminatory paychecks going back to, to when that started, or is she limited, to the most recent paychecks because, she, she missed the boat in terms of, of suing promptly, with respect to the earlier, paychecks. And the majority opinion there holds that she is shut out of, bringing suit with respect to the earlier paychecks.
And it says, you know, if you read the majority opinion, it, it's, it sounds very simple. It says, well, you know, "She should have brought suit earlier." And what I love about the Justice's dissent, Jeff, what you said a moment ago about her focus on lived experiences. She speaks very clearly, and precisely about what it would have been like to be Lilly Ledbetter.
She receives her check. The idea that she should have known then to file a federal lawsuit against her employer, is, is, absurd, if you think about it as a practical matter. How would she know that she was being paid less than her peers? How would, or even to file a lawsuit against your employer so aggressive? So, of course, she would have been concerned about doing something like that.
And, and ultimately, she points out all of the practical difficulties with the majority opinion and concludes, this can't possibly be what Congress intended when it enacted that law. And soon after President Obama was elected, Congress, amended Title VII to make clear that what Justice Ginsburg had described in her dissent was, in fact, what Congress, intended the law to do.
So, it… it was a great, she, she refers to the dissenter's hope, that, that she often carries, which is the idea that, what she writes in her dissents will eventually become law. And that was a, a great example of that.
Rosen: [00:16:37] What a, what a beautiful phrase. The dissenter's hope. Just as John Marshall Harlan's dissent in Plessy versus Ferguson inspired Thurgood Marshall when he argued Brown versus Board of Education. So with Justice Ginsburg's dissent, as you said, Kelsi, so inspired President Obama, that he, working with Congress, signed the Lilly Ledbetter Act during his first day in office.
Amanda, tell us about the way in which the Justice's focus on the lived experiences of women like Lilly Ledbetter helped informed her dissent in that case. She wrote, "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."
What does that say about the Justice's attention to the real challenges faced by real people?
Tyler: [00:17:35] I think you, again, you have to look back. And you have to appreciate who Justice Ruth Bader Ginsburg is. She's first-generation American on her father's side. As she put it, in her confirmation proceedings, barely second generation on her mother's. Her mother was a bookkeeper in the garment district in New York City.
She grew up understanding how the working-class lives. When she became an advocate, many of her early cases were representing, pregnant women who had been fired. Pregnant schoolteachers who'd been fired. Other people who were working, just trying to have an equal shake.
And by the time she's a Supreme Court Justice, and she's reading these cases, she's not just reading them in a vacuum. She's putting together the lived experiences of the litigants who are before the court. And appreciating them in a way that allows her to see how the law works on the ground.
And for someone like Lilly Ledbetter, it is just as, as I think Kelsi was saying, completely unrealistic to assume that she would be able to identify this discrimination, incremental and slow burning as it was, in real time. And a law that demands that of someone in that context is unrealistic.
And so, I think that's a great example of how her background and her appreciation from her time as a litigator of the lived experiences of Americans, makes her an especially great justice.
Rosen: [00:19:20] Kelsi, when we think of Justice Ginsburg's other majority opinions, not all are as well-known as VMI. But each bears close attention in its remarkable craftsmanship and attention to detail, and strategic vision of where she wants the court to go. I'm gonna ask you to share with our listeners what your favorite RBG majority opinion that we might not have heard of is, and, and why you've chosen it.
Corkran: [00:19:51] So, I think one of, the myths about the Justice, that, because she is so well recognized, as a, a change maker, is, that she's reflexively looking to make change in her opinions. When in fact, she is a fierce adherent to the rule of law. And one case from my term that reflects that, was called Wood v. Moss. It was a civil rights suit against two Secret Service officers who had prevented protesters from getting as close as they would have liked to, President Bush during one of his stops.
And, you know, she looked at the facts of that case. And determined, that, that the Secret Service agents had, you know, had to make a split-second decision about how to, make sure the President was safe. And determined that the suit couldn't proceed. And she was joined, by the rest of the court in that decision.
So, I think it's important to remember, just her, her commitment to being faithful in the application of the law. When she was an advocate, she was trying to change the law. But as a justice and a judge on the D.C. Circuit, she has been fiercely, fiercely committed to, to applying the, the law as she has been tasked to do in, in her position as a judge.
Rosen: [00:21:13] Amanda, a similar question to you. Can you identify for We The People listeners, a majority opinion of Justice Ginsburg's that you think is especially significant that they may not have heard of?
Corkran: [00:21:24] Yes. I particularly like her procedure opinions. They may not be the most glamorous opinions. They're not about gender discrimination per se, or other matters. But as a procedure professor, I think they're enormously important and impressive. And again, I think they tie back to a really important theme in her jurisprudence, which is to think about how the law affects people on the ground.
So, an opinion I'm drawn to is one I was recently teaching to my students, Nicastro versus McIntyre. It's a case about jurisdiction, and the question is whether an individual who is injured by a machine, in this case, a sheet metal machine at work in New Jersey, can sue the manufacturer of that machine in New Jersey courts. And it might surprise people to know that the Supreme Court held the answer is, no.
That in fact, because the manufacturer, based in the United Kingdom, used a distributor to send its machine into the American market and very aggressively sought out sales in the American market but did not by anything in the record of the case specifically target New Jersey ... Never mind that it's a sheet metal hotbed, as it, as it were. That was insufficient to allow an injured employee to sue the manufacturer for making an allegedly faulty machine in his home state.
Justice Ginsburg dissented from that decision. She said, "This is crazy." She relied on extensive case law, going back, explaining, as it were, almost lecturing, like the former civil procedure professor she was or is, her colleagues about how the law had developed. How we had allowed over time, or the court, I should say, had allowed over time litigants to have greater freedom in choosing where to sue [inaudible 00:23:29] among other defendants.
And she explained how in Europe, there would be no question that Mister Nicastro would be able to bring his suit in his home state, where the injury took place. She explained how, if you peel back the issues in the case and look at other doctrines that are applicable, like choice of law doctrines, of which she is also an expert, New Jersey law would probably govern the dispute.
And so, she asks, after all of this, how can it be that we would say to Mister Nicastro, injured on the job, gravely injured on the job, that he has to go to England to sue this manufacturer, when he was injured in New Jersey? That doesn't make any sense. And in a, and in an opinion, that really reads at the end a lot like the Ledbetter case. She says because her fellow court members, six of them, were splintered as to reasoning in denying jurisdiction for Mister Nicastro's suit in the New Jersey courts, she says, "I am heartened that there is no full opinion for the court today. And that hopefully, we can revisit this issue and sensible minds will prevail in the future."
So, she is ever hopeful. Even when she loses, and that's one of the things that I love most about her as a Justice.
Rosen: [00:24:52] Thank you for telling that wonderful story of hope and of the importance of civil procedure to her. Jurisprudence, which really exemplified her extraordinary focus and attention to detail to make the law work for individuals. Of course, it's remarkable to reflect that she wrote the definitive casebook on civil procedure in Sweden, published in 1965, which she wrote after teaching herself both Swedish and civil procedure.
And as all of us who've had the privilege of working with the Justice know, her extraordinary attention to detail, to every comma, to every adjective, to every word. Her astonishing focus. The fact that there is not anything that escapes her eye, is a signal of her complete engagement in the law and what makes her one of the greatest advocates and, and, and lawyers of her time. And civil procedure is a great example of that.
Well, let's turn now to the better-known phase of Justice Ginsburg. That's the Notorious RBG. The dissenter who writes fiery denunciations of the majority, who's become a pop culture icon, who's inspired pop art and T-shirts and bobbleheads and, and memes. Kelsi, I think you joined the court and clerked for the Justice just after she became, an internet sensation. After her dissent in the Shelby County case. Tell us about what it was like to observe that transformation, and then, and then tell us about how that Shelby County dissent came to exemplify the, the dissenter now known as the Notorious RBG.
Corkran: [00:26:31] So, this was June of 2013, and the majority of the court held in Shelby that, essentially that because the Voting Rights Act had been so successful in preventing discrimination, in, particularly racial discrimination in, in access to the, the polls, the, it was no longer constitutional. And that they, they were going to strike it down.
And the Justice, wrote a, a powerful, powerful dissent. you know, she's, she usually speaks ... She's a beautiful writer. But she's not one for, for lofty rhetoric, most of the time. She wants to plainly tell you the facts and why the majority is wrong.
In this opinion, she had this wonderful line where says, "Striking down the Voting Rights Act because it's been too successful is like throwing away your umbrella in a rainstorm, because you're not getting wet." And it was this moment in history, where the idea that the Supreme Court was interfering with the voting rights, in this way that was highly impractical and going to, as we saw over the years that followed, have, extraordinarily harmful consequences for minority voters. She was… it, it resonated.
And so, there were some students at NYU Law School who read the opinion and, and so ... They made a meme that had, the Justice with a, drawn in chalk crown on her head. And it said, "You can't spell truth without Ruth." And so, that started to trend, and it was shortly after that that, another, I think it was an NYU student gave her the moniker Notorious RBG.
And so that, I arrived at chambers for my clerkship maybe a week after Shelby came down. And so, it was over the course of the year. She was obviously always well known to people who follow the Supreme Court, but she became a full-blown world celebrity, as that year went on.
And so there were moments where we, you know, just explained who the Notorious BIG was. And kind of helped understand where these pop cultural references were coming from. But for the most part, it had absolutely no effect on her work. She was singularly focused on the cases that were before her, and making sure that she got them right.
And, and I think that's, it's remained that way. You know, that was just the beginning. Now, there are movies and documentaries. And I don't, I don't think it has any impact on, on the work she's doing.
Rosen: [00:29:06] Amanda, when I asked the Justice whether she had changed in evolving from the judge's judge, the judicial minimalist of her confirmation, to the Notorious RBG, she always insisted that she hadn't changed. The courts changed. And she also noted to the change in her role, when she became Senior Associate Justice for the majority, succeeding Justice Stevens. She felt it was her responsibility to have the liberal block speak in one voice.
Do you believe that, she changed or her role changed? And, tell us about, another of her fiery dissenting opinions, involving religious freedom.
Tyler: [00:29:48] I, I think she has not changed. She's the same judge she's always been. What you described, I think, is the right way to think about it, with Justice Stevens' retirement. She did become the most senior member of the court on what people like to call the liberal block, or among the liberal contingency, contingent, excuse me.
She, therefore, had the luxury of choosing how to assign dissents when the court divided five-four or six-three. And that means she got to keep a lot of the spoils for herself. Justice Stevens did that when he was in that position. I remember the year that I clerked, he wrote many of the court's dissents in the five-four decisions that came down that year, and there were quite a few.
Now, she finds herself in the position of getting to choose when to write and when to assign opinions to other justices voting with her. And, and as a result, we're seeing more higher profile dissents, but her positions aren't any different than they were before. Shelby County is a good example. I would have expected her to stake out that very same position, had the case come before the court some years earlier.
A case that involves another fiery, as you say, dissent written by Justice Ginsburg that comes to mind to, for me is Burwell versus Hobby Lobby Stores. It's a case in which she chastised, really, the court's majority in her dissent for having permitted commercial enterprises employing workers of very diverse faiths, to opt out of providing congressionally mandated contraceptive coverage, based on the assertions on the part of the employers, that it would violate their religious beliefs.
She goes back, as we've been discussing throughout our conversation, to cases litigated decades earlier and points to the fact that the court has long now recognized that the ability of women to, to control their reproductive lives is essential for their full participation in the workforce. And in, our society.
And so, she points to the majority and says, "You're not again appreciating the plight of the employees in this situation. And how, for some of them, this may be the only cost-effective way for them to afford contraceptive coverage," which is of course why Congress passed the relevant law at issue in that case.
Another dissent that comes to mind is her dissent in the American Legion case. This is a case about a large cross that had been put on public land. And the court says, effectively, that it's okay. It's not a violation for the cross to stand on public land, notwithstanding the First Amendment's requirement of church and state.
And what I find so powerful about that dissent is that she talks about how seeing a cross like that, if, affects someone who is Jewish. And again, you get a window into the lived experiences of a group of Americans who do not, you know, wear crosses around their necks. And it, she explains why, for, Jewish persons or other persons who are not Christian, looking at a giant cross and knowing that it's on public land, is really going to be received in a very different way than it would be received by someone who is Christian.
Rosen: [00:33:33] Thank you for those two important examples from her First Amendment jurisprudence. and you capture it perfectly. She, she said in the cross case that the cross is the foremost symbol of the Christian faith, and it, it, using it as a war memorial elevates Christianity over other faiths and religion over non religion. And in the, Hobby Lobby case, she said, memorably, "In… with respect to free exercise claims, no less than free speech claims, your right to swing your arms ends just where the other man's nose begins."
Kelsi, Amanda so powerfully gives examples of the Justice seeing the other side's perspective in cases involving religious freedom and describing the effects of religious symbols or acts on the minority. Can you give other examples of that and other examples throughout her jurisprudence of seeing the perspective of the affected minorities?
Corkran: [00:34:38] The examples that Amanda gave are excellent. I think they're emblematic of the Justice's jurisprudence. You see similar themes in the affirmative action cases like Gratz v. Bollinger, Fisher v. University of Texas, and some of the other sex discrimination cases like Vance v. Ball State. What ties all of these cases together, I think ...
You know, I spoke earlier about the Justice's truth telling and why that meme, "You can't spell truth without Ruth," is, is so significant. There is this dominant narrative in the majority opinion in each of these cases, which tells a story from the perspective of the, the people with power. Right? I think Hobby Lobby is a great example of that. The focus of the majority opinion is on the owners of this hugely profitable corporation and their religious beliefs.
And as Amanda said, those religious beliefs are then transferred onto this for-profit corporation. And, and now we have, corporations exercising their religious rights. And what the Justice does in each is, of her dissents and come... She comes back and says, "That's, that's not the whole truth. There's a whole ‘nother side to this, people who are being impacted by the laws you are making." And so, as Amanda said, when you look at the Hobby Lobby dissent, she talks about the impact, on the employees, these women who cannot access contraceptive coverage because of the decisions that their employer are making.
And, what is so profound about this to me is, you know, I think we're in a moment in our country where we're starting to recognize the other side of the narrative and that the narratives that have dominated throughout the course of history aren't the whole stories. She was doing this 40 years ago, 45 years ago… long before she thought anyone would listen to anything she said, she insisted that she was going to tell the truth about the other side of the story, whether it was the male caretaker, or the, the pregnant schoolteacher.
She was going to tell that story. And she has continued to do that for 45 years. Her, her legacy and, and the progress she was able to make through that truth telling, I think, is an inspiration for us all. That we need to keep relentlessly telling the truth and dissenting, even when it doesn't seem like it makes a difference. Because it, it matters that that story is told.
Rosen: [00:37:07] Amanda, it's time to sum up in this meaningful and important and moving conversation. And I invite you to share with We The People listeners why it is that you think that Justice Ginsburg will be remembered as one of the most important advocates for gender equality of our time?
Tyler: [00:37:33] I always come back to a quote that, is taken from her majority opinion for the court in the VMI case. There, she wrote, "Generalizations about the way women are, estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description." That is a statement of her life's work, her labor of love to open the doors to not just women, but both men and women, to live to their full human potential.
She also talks in that quote about women whose talent and capacity place them outside the average description. And we've talked throughout our conversation about how she brings lived experiences to her time as a justice. I would certainly describe Ruth Bader Ginsburg as someone whose talent and capacity places them outside the average description.
This is someone who went to Harvard Law School with a handful of other women, in a time when their first-year class had over 500 men. And yet, she rose to the top of the profession. She is truly extraordinary in her own accomplishments, but because of her work early on on behalf of, as Kelsi was saying, pregnant teachers, pregnant Air Force, officials who were discharged once they became pregnant, Navy, women in the Navy who wanted full opportunities, available to men. Her work on behalf of all of the litigants she represented helped ground her to see that the law can and should open up opportunities for everyone.
And that, I think, is her greatest legacy. That not only as an advocate did she accomplish so much, but as a justice she helped bring a window into those lives. And the need for equal opportunity for everyone, to her voice as a justice. And we are all the better for it.
Rosen: [00:39:48] Thank you for that moving expression of how Justice Ginsburg's legacy has helped women and men to achieve their full potential, making us all better for it. Kelsi, the last word in this meaningful conversation is to you. Why do you think that Justice Ruth Bader Ginsburg will be remembered as the most important advocate for gender equality of our time?
Corkran: [00:40:14] What the Justice has accomplished in her life is truly extraordinary. But I think that what she would say, what her dissents tell us is that there is still much work left to be done. And so many of the cases we've discussed, the dissenter's hope has not yet been fulfilled.
And ultimately, that fulfillment falls not on the Justice but on all of us who, agree with her vision. I- if her dissents resonate with you, then it's incumbent on you to vote and work to elect legislators who will amend the laws to address the problems she identifies in her dissents. with the majority's interpretation.
So, in her dissents, she lays out a roadmap, but ultimately that work is not hers to do. That's the work of the people.
Rosen: [00:41:10] Thank you so much, Amanda Tyler and Kelsi Corkran, for a moving, inspiring, and meaningful discussion of the heroic legacy of Justice Ruth Bader Ginsburg. Amanda, Kelsi, thank you so much for joining.
Tyler: [00:41:28] Thank you, Jeff.
Corkran: [00:41:39] Thank you, this was great.
Rosen: [00:41:39] Today's show was engineered by Greg Sheckler and produced by Jackie McDermott. Research was provided by Grace Zandy and Lana Ulrech. And please rate, review, and subscribe to We The People on Apple Podcasts and recommend the show to friends, colleagues, or anyone anywhere who is hungry for constitutional illumination and debate. And always remember that we're a private nonprofit, and we rely on the generosity and passion and engagement of people from across the country who are inspired by our nonpartisan mission of constitutional education and debate.
You can support the mission by becoming a member at ConstitutionCenter.org/membership, or give a donation of any amount to support our work including this podcast and including those live constitutional classes at ConstitutionCenter.org/donate. On behalf of the National Constitution Center, I'm Jeffrey Rosen.
