WEBVTT 00:00:00.000 --> 00:00:03.020 Welcome back to the Deep Dive. Today we are opening 00:00:03.020 --> 00:00:05.740 up a stack of research that feels, you know, 00:00:05.740 --> 00:00:08.400 incredibly familiar on the surface. But the deeper 00:00:08.400 --> 00:00:10.519 you go, the more you realize that the popular 00:00:10.519 --> 00:00:14.199 image, it might actually be hiding the real story. 00:00:14.740 --> 00:00:18.120 We are talking about a figure who became a legitimate 00:00:18.120 --> 00:00:21.879 pop culture icon in her 80s. We're talking about 00:00:21.879 --> 00:00:25.839 the notorious RBG, Ruth Bader Ginsburg. Exactly. 00:00:25.920 --> 00:00:27.859 And I think for most people listening, when they 00:00:27.859 --> 00:00:33.159 hear that name, a very specific image pops into 00:00:33.159 --> 00:00:35.979 their head. It's the memes, right? It's the notorious 00:00:35.979 --> 00:00:38.820 crown on her head, the tattoos people got, the 00:00:38.820 --> 00:00:41.000 coffee mugs with the dissenter collar. It's this 00:00:41.000 --> 00:00:44.719 tiny elderly Jewish grandmother figure who somehow 00:00:44.719 --> 00:00:47.689 became this. internet action hero. Which is a 00:00:47.689 --> 00:00:50.030 fascinating cultural phenomenon in itself, of 00:00:50.030 --> 00:00:52.189 course. But if we aren't careful, the meme can, 00:00:52.310 --> 00:00:54.469 well, it can obscure the reality of who she actually 00:00:54.469 --> 00:00:56.229 was and what she actually accomplished. Totally. 00:00:56.369 --> 00:00:58.490 I mean, do you know there is a species of praying 00:00:58.490 --> 00:01:01.369 mantis named after her? The Isle Mantis Ginsbergii. 00:01:01.429 --> 00:01:03.250 I did see that in the notes. Yeah. It's a very 00:01:03.250 --> 00:01:05.890 specific kind of biological tribute. It's incredible. 00:01:06.489 --> 00:01:08.930 Scientists named it that because the neck plate 00:01:08.930 --> 00:01:13.489 on the mantis. resembled her famous jabots, you 00:01:13.489 --> 00:01:15.829 know, those lace collars she wore over her judicial 00:01:15.829 --> 00:01:18.890 robes. Ah, I see the connection. And get this, 00:01:18.930 --> 00:01:21.489 they identified this new species based on the 00:01:21.489 --> 00:01:24.049 female genitalia instead of the male, which is 00:01:24.049 --> 00:01:28.030 apparently very rare in entomology. Was a deliberate 00:01:28.030 --> 00:01:30.709 nod to her fight for gender equality. Okay, that 00:01:30.709 --> 00:01:33.890 is actually quite fitting. But you're right, 00:01:33.950 --> 00:01:36.400 that's the pop culture layer. You have the mantis. 00:01:36.400 --> 00:01:38.000 You have the Saturday Night Live sketches with 00:01:38.000 --> 00:01:40.500 Kate McKinnon doing the Ginsbergs. You have all 00:01:40.500 --> 00:01:42.920 the merchandise. But the mission of this deep 00:01:42.920 --> 00:01:46.299 dive is to peel all of that back. Because long 00:01:46.299 --> 00:01:48.879 before she was a meme, she was a strategic legal 00:01:48.879 --> 00:01:51.719 architect who fundamentally, and I mean fundamentally, 00:01:51.920 --> 00:01:54.560 changed the way American law understands gender. 00:01:54.900 --> 00:01:56.939 And that's the part I really want to unpack today. 00:01:57.219 --> 00:01:59.640 Because I think people see the I dissent caller 00:01:59.640 --> 00:02:02.680 and they just assume she was always this. This 00:02:02.680 --> 00:02:05.060 firebrand, you know shouting from the rooftops, 00:02:05.060 --> 00:02:07.019 right a revolution But looking at the source 00:02:07.019 --> 00:02:10.139 material at the case files in the biography her 00:02:10.139 --> 00:02:13.620 actual career path was different. It was calculated 00:02:13.620 --> 00:02:17.900 it was Slow. It was incremental. And that's a 00:02:17.900 --> 00:02:19.719 key theme we need to explore today. We're going 00:02:19.719 --> 00:02:22.259 to be looking at her biography, her career summaries, 00:02:22.280 --> 00:02:25.219 specific case files, both dissents and majority 00:02:25.219 --> 00:02:27.460 opinions. Right. And we're going to move past 00:02:27.460 --> 00:02:30.460 the icon to understand the work. We'll look at 00:02:30.460 --> 00:02:33.099 her origins, that incremental legal strategy, 00:02:33.379 --> 00:02:36.259 the specific cases where she redefined discrimination, 00:02:36.639 --> 00:02:40.280 and crucially, the complexity of reviews. Because 00:02:40.280 --> 00:02:42.479 she wasn't always the liberal icon people imagined. 00:02:42.680 --> 00:02:45.590 Not at all. She had some very pointed. critiques 00:02:45.590 --> 00:02:48.310 of Roe v. Wade, for instance. She had a, well, 00:02:48.389 --> 00:02:51.409 a complex record on Native American rights. She 00:02:51.409 --> 00:02:53.990 was a deeply nuanced jurist. And a resilient 00:02:53.990 --> 00:02:56.210 human being. The health battles alone are just 00:02:56.210 --> 00:02:58.530 staggering. Absolutely. So let's get into it. 00:02:58.550 --> 00:03:01.050 Let's go back to Brooklyn. Before she was RBG, 00:03:01.129 --> 00:03:04.090 she was just Joan. Joan Ruth Bader, born in 1933 00:03:04.090 --> 00:03:06.650 in Flatbush, a working class Jewish neighborhood 00:03:06.650 --> 00:03:08.729 in Brooklyn. But the family didn't call her Joan. 00:03:09.370 --> 00:03:11.650 Apparently there were too many Joans in her kindergarten 00:03:11.650 --> 00:03:14.860 class. They called her Kiki. A nickname her older 00:03:14.860 --> 00:03:17.719 sister, Marilyn, gave her because she was a kicky 00:03:17.719 --> 00:03:21.139 baby. She was active, restless from the very 00:03:21.139 --> 00:03:23.979 beginning. I love that. But her early life wasn't 00:03:23.979 --> 00:03:25.939 just, you know, cute nicknames and kicky baby 00:03:25.939 --> 00:03:28.439 stories. It was marked by pretty severe tragedy, 00:03:28.580 --> 00:03:31.159 wasn't it? It was. And this is really essential 00:03:31.159 --> 00:03:33.800 to understanding her drive. She lost her older 00:03:33.800 --> 00:03:36.060 sister, Marilyn, to meningitis when Ruth was 00:03:36.060 --> 00:03:39.460 just a toddler, about 14 months old. Wow. So 00:03:39.460 --> 00:03:42.360 that made Ruth effectively an only child carrying 00:03:42.360 --> 00:03:44.740 the full weight of her parents' hopes and dreams. 00:03:44.960 --> 00:03:48.099 And then her mother, Celia, who was the absolute 00:03:48.099 --> 00:03:51.280 driving force behind her education, battled cancer 00:03:51.280 --> 00:03:53.539 throughout Ruth's entire high school experience. 00:03:53.819 --> 00:03:56.080 And the timing of her mother's death is just... 00:03:56.439 --> 00:03:58.159 It's just heartbreaking. It's awful. It happened 00:03:58.159 --> 00:04:00.479 the day before Ruth's high school graduation. 00:04:00.560 --> 00:04:03.020 The day before. So she didn't attend the ceremony. 00:04:03.099 --> 00:04:05.979 She stayed home to grieve. But her mother left 00:04:05.979 --> 00:04:09.099 this indelible mark on her psyche. Celia had 00:04:09.099 --> 00:04:11.360 been a brilliant student herself, you know, graduated 00:04:11.360 --> 00:04:14.099 high school at 15, but her family sent her brother 00:04:14.099 --> 00:04:16.519 to college instead of her. That was the classic 00:04:16.519 --> 00:04:19.259 story of that era. Yeah. The resources, the opportunities, 00:04:19.459 --> 00:04:21.639 they all went to the sons because they were the 00:04:21.639 --> 00:04:23.680 ones expected to be the providers. Precisely. 00:04:23.839 --> 00:04:26.199 So Celia was determined that Ruth would have 00:04:26.199 --> 00:04:28.920 the opportunity if she was denied. She constantly 00:04:28.920 --> 00:04:31.540 pushed her to be independent. Be a lady, she'd 00:04:31.540 --> 00:04:33.540 say, but be independent. And she pushed her to 00:04:33.540 --> 00:04:36.120 read. And there's this layer of Jewish identity 00:04:36.120 --> 00:04:39.480 here that seems really interesting and foundational 00:04:39.480 --> 00:04:44.310 to her worldview. Yes. The Baiters weren't devoutly 00:04:44.310 --> 00:04:46.589 religious in terms of ritual. They weren't keeping 00:04:46.589 --> 00:04:49.910 kosher in a strict sense. But the cultural influence 00:04:49.910 --> 00:04:52.829 was profound. I read about the concept of Tikkun 00:04:52.829 --> 00:04:56.089 Olam in the files. Can you explain that? It means 00:04:56.089 --> 00:04:58.870 repairing the world. It's a central tenet of 00:04:58.870 --> 00:05:01.629 modern Jewish thought. The idea is that the world 00:05:01.629 --> 00:05:04.550 is broken or incomplete, and it is a human duty 00:05:04.550 --> 00:05:06.930 to participate in fixing it, to pursue justice. 00:05:07.110 --> 00:05:09.610 That influenced her deeply. But she also felt 00:05:09.610 --> 00:05:11.529 the sting of exclusion within her own faith, 00:05:11.670 --> 00:05:13.910 right? She did. As a teenager, she wasn't allowed 00:05:13.910 --> 00:05:16.269 to have a bat mitzvah because of orthodox restrictions 00:05:16.269 --> 00:05:19.269 on women reading from the Torah or being part 00:05:19.269 --> 00:05:21.779 of a minyan, the quorum for prayer. Which feels 00:05:21.779 --> 00:05:24.160 like the first brick in the wall of things Ruth 00:05:24.160 --> 00:05:26.819 is going to dismantle later. Even in the space 00:05:26.819 --> 00:05:28.860 that gave her this powerful moral instruction, 00:05:29.199 --> 00:05:31.740 she was being told she was secondary. Exactly. 00:05:31.800 --> 00:05:34.339 It's a foundational experience of being an outsider. 00:05:34.600 --> 00:05:37.740 And much later in life, she kept a framed artwork 00:05:37.740 --> 00:05:39.980 in her Supreme Court chambers with the Hebrew 00:05:39.980 --> 00:05:44.420 phrase, Zedek, Zedek, Tirdof. It means? Justice, 00:05:44.639 --> 00:05:48.379 justice shall you pursue. It comes from Deuteronomy. 00:05:48.560 --> 00:05:51.319 It was a constant reminder of her heritage and 00:05:51.319 --> 00:05:53.920 her professional responsibility. For her, law 00:05:53.920 --> 00:05:56.620 wasn't just a job. It was a calling. And it was 00:05:56.620 --> 00:05:59.800 rooted in that early identity. So she heads off 00:05:59.800 --> 00:06:03.220 to Cornell University. where she meets two very 00:06:03.220 --> 00:06:05.459 important men who shape her future in very different 00:06:05.459 --> 00:06:08.519 ways. One was a world -famous novelist, and one 00:06:08.519 --> 00:06:10.879 was a tax attorney. The novelist was Vladimir 00:06:10.879 --> 00:06:13.000 Nabokov. The guy who wrote Lolita. He was her 00:06:13.000 --> 00:06:15.620 professor. The very same. She studied European 00:06:15.620 --> 00:06:18.139 literature under him, and this is a really key 00:06:18.139 --> 00:06:20.180 takeaway for anyone who reads her legal opinions 00:06:20.180 --> 00:06:22.959 later. Nabokov taught her that words are precision 00:06:22.959 --> 00:06:26.509 instruments. He hated vague language. He taught 00:06:26.509 --> 00:06:28.889 that the placement of a single word, a comma, 00:06:29.029 --> 00:06:31.129 changes the reality that a sentence describes. 00:06:31.509 --> 00:06:34.009 You can see that so clearly in her legal writing. 00:06:34.189 --> 00:06:37.550 It is dry. It is incredibly precise. And there 00:06:37.550 --> 00:06:40.569 is zero fluff. It's all about clarity and impact. 00:06:40.870 --> 00:06:43.389 And the tax attorney. That was Martin Ginsberg. 00:06:43.759 --> 00:06:46.879 Marty. She met him when she was just 17, and 00:06:46.879 --> 00:06:48.720 she famously said he was the first boy she ever 00:06:48.720 --> 00:06:50.980 met who cared that she had a brain. Marty sounds 00:06:50.980 --> 00:06:53.600 like a character. Oh, he was. By all accounts, 00:06:53.720 --> 00:06:56.060 he was the opposite of her in almost every way. 00:06:56.120 --> 00:06:59.180 He was outgoing, funny, the life of the party, 00:06:59.360 --> 00:07:02.879 a bit of a class clown. Ruth was shy, serious, 00:07:03.000 --> 00:07:05.980 incredibly intense. And they got married right 00:07:05.980 --> 00:07:08.540 after she graduated from Cornell. They did. But 00:07:08.540 --> 00:07:10.519 then they head to Harvard Law School in 1956, 00:07:10.680 --> 00:07:13.740 and the reality of the 1950s hits. Well, it hits 00:07:13.740 --> 00:07:15.519 hard. This is the part of her story that always 00:07:15.519 --> 00:07:17.259 just blows my mind. She's at Harvard, one of 00:07:17.259 --> 00:07:19.120 the most prestigious institutions in the world. 00:07:19.220 --> 00:07:21.699 But you look at the class photos from that era, 00:07:21.759 --> 00:07:24.800 and it's just a sea of men in suits. It was a 00:07:24.800 --> 00:07:28.620 class of about 500 men and nine women. Nine. 00:07:28.759 --> 00:07:30.899 That's not even 2%. It's basically a rounding 00:07:30.899 --> 00:07:34.819 error. And the dean, Dean Erwin Griswold, the 00:07:34.819 --> 00:07:37.720 story about him is legendary. It is. The story 00:07:37.720 --> 00:07:39.800 gets told a lot, but we need to analyze the psychology 00:07:39.800 --> 00:07:42.360 of it. Dean Griswold invites the nine women to 00:07:42.360 --> 00:07:44.240 dinner at his house. So they are sitting there, 00:07:44.360 --> 00:07:46.899 probably terrified, trying their best to fit 00:07:46.899 --> 00:07:49.579 in. And he goes around the table and asks each 00:07:49.579 --> 00:07:52.459 of them to their faces, why are you at Harvard 00:07:52.459 --> 00:07:55.220 Law School taking the place of a man? It's just 00:07:55.220 --> 00:07:57.920 breathtaking, isn't it? The sheer audacity. The 00:07:57.920 --> 00:08:00.220 assumption being that a man would use the degree 00:08:00.220 --> 00:08:02.720 to support a family. And these women were just 00:08:02.720 --> 00:08:06.519 indulging a hobby, looking for a husband. Taking 00:08:06.519 --> 00:08:08.860 up a valuable spot that a man deserved. So how 00:08:08.860 --> 00:08:11.050 did she respond to that? She played the game. 00:08:11.189 --> 00:08:14.189 She gave a polite, demure answer. She said something 00:08:14.189 --> 00:08:16.250 along the lines of wanting to understand her 00:08:16.250 --> 00:08:18.310 husband's work better so she could be a sympathetic 00:08:18.310 --> 00:08:21.029 and supportive wife. That is strategic. She didn't 00:08:21.029 --> 00:08:23.149 let him see he'd gotten to her. It was survival, 00:08:23.350 --> 00:08:27.170 but internally. You have to imagine that moment 00:08:27.170 --> 00:08:29.629 just fueled the fire. She realized that no matter 00:08:29.629 --> 00:08:32.269 how smart she was, no matter how hard she worked, 00:08:32.409 --> 00:08:35.509 to the institution, she was an interloper. And 00:08:35.509 --> 00:08:38.429 speaking of fire, her workload at Harvard was. 00:08:39.080 --> 00:08:41.720 It was superhuman. We hear about hustle culture 00:08:41.720 --> 00:08:44.419 today, but this is on a whole other level. It 00:08:44.419 --> 00:08:46.830 really was. In their second year of law school, 00:08:47.110 --> 00:08:49.769 Marty was diagnosed with testicular cancer. And 00:08:49.769 --> 00:08:52.029 in the 1950s, that was often a death sentence. 00:08:52.309 --> 00:08:55.190 The treatment was massive, debilitating radiation. 00:08:55.490 --> 00:08:58.350 He was incredibly sick. So Ruth just steps up. 00:08:58.490 --> 00:09:00.470 She doesn't just step up. She takes over. She 00:09:00.470 --> 00:09:02.730 attends her own classes. She attends his classes. 00:09:02.830 --> 00:09:04.809 She takes notes for both of them. Both sets of 00:09:04.809 --> 00:09:07.269 notes. Then she comes home, types up his papers 00:09:07.269 --> 00:09:09.110 from his dictation because he's too weak to type 00:09:09.110 --> 00:09:11.289 himself. She takes care of their infant daughter, 00:09:11.409 --> 00:09:14.370 Judson. She prepares his meals. And this is the 00:09:14.370 --> 00:09:16.909 part. That's just astounding. She does all of 00:09:16.909 --> 00:09:19.070 this while making the Harvard Law Review. That 00:09:19.070 --> 00:09:21.269 is the part that feels like a superhero origin 00:09:21.269 --> 00:09:23.230 story. It just establishes this pattern that 00:09:23.230 --> 00:09:25.450 we see throughout her life. When things fall 00:09:25.450 --> 00:09:28.649 apart, Ruth works. Work was her sanctuary. It 00:09:28.649 --> 00:09:31.230 was how she coped with chaos and grief. It was 00:09:31.230 --> 00:09:33.750 the one thing she could control. Marty eventually 00:09:33.750 --> 00:09:37.230 recovered, thankfully, graduated. and got a job 00:09:37.230 --> 00:09:39.610 at a big firm in New York. So Ruth transferred 00:09:39.610 --> 00:09:42.350 to Columbia Law School for her final year to 00:09:42.350 --> 00:09:44.049 be with them. And she graduated from Columbia 00:09:44.049 --> 00:09:46.590 tied for first in her class. Okay, so let's look 00:09:46.590 --> 00:09:48.710 at the resume at this point. Top of the class 00:09:48.710 --> 00:09:52.370 at Columbia, law review at Harvard, glowing recommendations 00:09:52.370 --> 00:09:56.509 from her professors. In a pure meritocracy, this 00:09:56.509 --> 00:09:59.289 person has their pick of any job in the country. 00:09:59.600 --> 00:10:02.659 In a meritocracy, yes. In 1960 New York City, 00:10:02.840 --> 00:10:05.620 she was unemployable. How is that even possible? 00:10:05.740 --> 00:10:08.159 What was the reasoning? She had, as she later 00:10:08.159 --> 00:10:10.340 put it, three strikes against her. She was a 00:10:10.340 --> 00:10:13.360 woman, she was Jewish, and perhaps most damning 00:10:13.360 --> 00:10:15.360 of all to employers at the time, she was a mother. 00:10:15.600 --> 00:10:18.100 Why was the mother part the worst of the three? 00:10:18.399 --> 00:10:20.000 Because the assumption was that a mother would 00:10:20.000 --> 00:10:22.120 be distracted. She would need to leave early 00:10:22.120 --> 00:10:24.039 if the kid was sick. She wouldn't be committed 00:10:24.039 --> 00:10:26.240 to the firm in the way a man would. They thought 00:10:26.240 --> 00:10:28.139 her attention would always be divided. So she 00:10:28.139 --> 00:10:30.879 just got rejected everywhere. Everywhere. She 00:10:30.879 --> 00:10:33.779 applied to virtually every top firm in New York 00:10:33.779 --> 00:10:37.350 and got nothing. Not a single offer. She applied 00:10:37.350 --> 00:10:39.950 for a Supreme Court clerkship with Justice Felix 00:10:39.950 --> 00:10:42.750 Frankfurter, who was a progressive hero, by the 00:10:42.750 --> 00:10:46.289 way. He rejected her explicitly because of her 00:10:46.289 --> 00:10:49.129 gender. He asked her professors if she wore skirts. 00:10:49.370 --> 00:10:51.470 He told them he wasn't ready to hire a woman 00:10:51.470 --> 00:10:53.490 because he used, and I'm quoting here, salty 00:10:53.490 --> 00:10:56.629 language in his chambers. And he thought a woman's 00:10:56.629 --> 00:10:59.610 presence would inhibit him. Unbelievable. That 00:10:59.610 --> 00:11:02.100 has to be just devastating to do. everything 00:11:02.100 --> 00:11:05.059 right, to be the absolute best and be told you 00:11:05.059 --> 00:11:07.320 simply are the wrong shape for this role. It 00:11:07.320 --> 00:11:09.879 required, well, it required muscle, as she put 00:11:09.879 --> 00:11:12.379 it, to break the door down. Her mentor at Columbia, 00:11:12.679 --> 00:11:15.360 a professor named Gerald Gunther, basically had 00:11:15.360 --> 00:11:18.159 to strong arm a district judge, Judge Edmund 00:11:18.159 --> 00:11:20.320 Palmieri. What do you mean strong arm? Gunther 00:11:20.320 --> 00:11:22.539 told him, if you don't hire her, I'm never sending 00:11:22.539 --> 00:11:24.740 you a clerk again. And if she fails, she doesn't 00:11:24.740 --> 00:11:26.559 work out, I will personally provide you with 00:11:26.559 --> 00:11:28.740 a replacement. Wow, that is high stakes. That 00:11:28.740 --> 00:11:31.000 is putting your entire reputation on the line 00:11:31.000 --> 00:11:33.850 for your student. It worked. She got the clerkship 00:11:33.850 --> 00:11:36.370 and she excelled, of course. But even later, 00:11:36.409 --> 00:11:38.950 when she moved into academia at Rutgers Law School 00:11:38.950 --> 00:11:42.710 in 1963, the discrimination was just blatant. 00:11:42.889 --> 00:11:44.950 She found out she was being paid significantly 00:11:44.950 --> 00:11:47.289 less than her male colleagues. And the reason 00:11:47.289 --> 00:11:49.889 they gave her. The dean told her, Ruth, your 00:11:49.889 --> 00:11:52.049 husband has a very good job. You don't need the 00:11:52.049 --> 00:11:54.659 money. Oh, my God. The assumption was that women 00:11:54.659 --> 00:11:57.840 only worked for pen money, extra cash or luxuries, 00:11:57.840 --> 00:12:01.639 not for a living or a career. It's infuriating. 00:12:01.700 --> 00:12:03.960 Yeah. But all of this, all these slights and 00:12:03.960 --> 00:12:05.860 rejections, they're building the foundation for 00:12:05.860 --> 00:12:08.440 the next phase of her life. She's seen the system 00:12:08.440 --> 00:12:10.940 from the inside. She's felt the doors slam in 00:12:10.940 --> 00:12:13.440 her face. But before she starts tearing down 00:12:13.440 --> 00:12:16.259 those doors in America, she takes a little detour 00:12:16.259 --> 00:12:20.039 to Sweden. That seems random. Yes. And this is 00:12:20.039 --> 00:12:22.139 a detail that often gets left out of the biopics, 00:12:22.139 --> 00:12:24.899 but it is absolutely crucial. In the early 60s, 00:12:24.899 --> 00:12:26.820 she was asked to co -author a book on Swedish 00:12:26.820 --> 00:12:29.059 civil procedure. She had to learn Swedish and 00:12:29.059 --> 00:12:31.399 she spent time there observing their courts and 00:12:31.399 --> 00:12:33.480 their society. And what did she see there that 00:12:33.480 --> 00:12:36.139 was so different? It was a revelation. She saw 00:12:36.139 --> 00:12:39.600 a society where women made up 20 to 25 percent 00:12:39.600 --> 00:12:42.679 of the law students. She saw a female judge who 00:12:42.679 --> 00:12:45.039 was eight months pregnant presiding over a trial 00:12:45.039 --> 00:12:48.000 and nobody batted an eye. It wasn't a big deal. 00:12:48.100 --> 00:12:50.600 It was just normal. It was normal. And that showed 00:12:50.600 --> 00:12:52.779 her that the American status quo, where women 00:12:52.779 --> 00:12:55.639 were expected to be domestic appendages, wasn't 00:12:55.639 --> 00:12:57.919 natural. It wasn't inevitable. It wasn't biological 00:12:57.919 --> 00:13:00.860 destiny. It was a choice, a series of policy 00:13:00.860 --> 00:13:03.500 choices that could be unchosen. So she comes 00:13:03.500 --> 00:13:05.940 back to the states, armed with this powerful 00:13:05.940 --> 00:13:08.940 new perspective, and she co -founds the ACLU 00:13:08.940 --> 00:13:12.279 Women's Rights Project in 1972. And this is where 00:13:12.279 --> 00:13:14.539 we really get to her strategy. She didn't just 00:13:14.539 --> 00:13:16.639 walk into the Supreme Court and say, hey, gender 00:13:16.639 --> 00:13:19.240 equality now, please. No. And this is where the 00:13:19.240 --> 00:13:21.879 notorious image can be a little misleading. She 00:13:21.879 --> 00:13:23.940 wasn't a radical revolutionary in her methods. 00:13:23.960 --> 00:13:25.679 She was a conservative. And I mean that with 00:13:25.679 --> 00:13:28.539 a small C strategist. She used incrementalism. 00:13:28.659 --> 00:13:31.399 You called it unraveling a sweater before. Exactly. 00:13:31.539 --> 00:13:33.320 She didn't try to burn the whole sweater down 00:13:33.320 --> 00:13:36.320 in one go. She picked at the loose threads. She 00:13:36.320 --> 00:13:39.139 targeted very specific statutes that seemed minor 00:13:39.139 --> 00:13:41.960 on the surface, but which upheld the entire legal 00:13:41.960 --> 00:13:44.620 structure of gender discrimination. And her genius 00:13:44.620 --> 00:13:47.899 was in her choice of plaintiffs. Yes. Yeah. The 00:13:47.899 --> 00:13:50.279 choice of who would be the face of the case. 00:13:50.340 --> 00:13:53.019 It was brilliant. She represented men. Often, 00:13:53.179 --> 00:13:56.019 yes. It was a brilliant tactical move. You have 00:13:56.019 --> 00:13:57.860 to remember the Supreme Court at this time was 00:13:57.860 --> 00:14:00.960 nine men, mostly elderly men. They didn't really 00:14:00.960 --> 00:14:03.620 believe gender discrimination was a serious constitutional 00:14:03.620 --> 00:14:06.059 problem. They saw it as, you know, the natural 00:14:06.059 --> 00:14:08.799 order of things. Civilry, even. Right. Protecting 00:14:08.799 --> 00:14:10.820 women. So she needed to show them that these 00:14:10.820 --> 00:14:12.980 stereotypes didn't just hurt women. They put 00:14:12.980 --> 00:14:15.620 men in a cage, too. Let's talk about a specific 00:14:15.620 --> 00:14:20.059 case. Weinberger v. Weissenfeld in 1975. This 00:14:20.059 --> 00:14:22.279 is the classic example in the research stack. 00:14:22.639 --> 00:14:26.220 It is. So Stephen Weisenfeld was a widower. His 00:14:26.220 --> 00:14:28.980 wife, Paula, who was a teacher, died in childbirth. 00:14:29.259 --> 00:14:31.639 He wanted to work part time and stay home to 00:14:31.639 --> 00:14:34.240 raise his infant son. The exact thing society 00:14:34.240 --> 00:14:36.600 told women they should do. So he applied for 00:14:36.600 --> 00:14:38.620 Social Security survivor benefits to help him 00:14:38.620 --> 00:14:41.919 do that. Exactly. But the law at the time said 00:14:41.919 --> 00:14:45.019 those benefits were only for widows, not widowers. 00:14:45.340 --> 00:14:47.879 What was the government's logic there? The government's 00:14:47.879 --> 00:14:51.409 logic was. Men are breadwinners. If a man dies, 00:14:51.730 --> 00:14:54.570 his family is left destitute. If a woman dies, 00:14:54.830 --> 00:14:57.389 the man can still earn, so he doesn't need the 00:14:57.389 --> 00:14:59.990 government's help. It was based on this rigid 00:14:59.990 --> 00:15:03.450 1950s view of a family. So Ginsburg takes this 00:15:03.450 --> 00:15:06.210 case. And how does she frame the argument? She 00:15:06.210 --> 00:15:08.950 argued that this law was a double discrimination. 00:15:09.370 --> 00:15:11.970 It hurt two people at once. Okay, walk us through 00:15:11.970 --> 00:15:14.850 the two sides of that coin. First, it discriminated 00:15:14.850 --> 00:15:17.620 against the deceased wife, Paula. She paid the 00:15:17.620 --> 00:15:19.720 same Social Security taxes out of her paycheck 00:15:19.720 --> 00:15:21.940 as a man did, but her contributions netted her 00:15:21.940 --> 00:15:24.720 family less protection. Her labor, her earnings, 00:15:24.820 --> 00:15:27.379 were legally devalued. So it discriminated against 00:15:27.379 --> 00:15:29.860 the woman as an earner. Precisely. And second, 00:15:30.000 --> 00:15:32.019 it discriminated against Stephen, the surviving 00:15:32.019 --> 00:15:34.799 father, by denying him the opportunity to be 00:15:34.799 --> 00:15:37.799 a primary parent solely because of his sex. The 00:15:37.799 --> 00:15:40.139 law basically said, you're a man, go back to 00:15:40.139 --> 00:15:42.600 work, you can't be a caregiver. So it framed 00:15:42.600 --> 00:15:44.500 these traditional gender roles as a cage for 00:15:44.500 --> 00:15:46.840 everyone, not just for women. Exactly. And she 00:15:46.840 --> 00:15:50.259 won that case unanimously, nine to zero. It was 00:15:50.259 --> 00:15:52.759 a huge victory that proved the government couldn't 00:15:52.759 --> 00:15:55.779 rely on these broad, romantic generalizations 00:15:55.779 --> 00:15:58.620 about sex. Speaking of the word sex, there's 00:15:58.620 --> 00:16:01.320 a funny story about that, isn't there? She stopped 00:16:01.320 --> 00:16:04.139 using it in her legal briefs. She did. Her secretary 00:16:04.139 --> 00:16:06.879 at Columbia, a woman named Flo Kennedy, actually 00:16:06.879 --> 00:16:09.360 suggested it. She said, Ruth, every time you 00:16:09.360 --> 00:16:12.500 say the word sex to these male judges, they aren't 00:16:12.500 --> 00:16:14.320 thinking about the 14th Amendment. They're thinking 00:16:14.320 --> 00:16:17.070 about. Well, you know. Giggling like schoolboys. 00:16:17.250 --> 00:16:19.509 It's distracting, the secretary said. So she 00:16:19.509 --> 00:16:21.990 suggested using the word gender instead. It sounds 00:16:21.990 --> 00:16:24.250 more grammatical, less biological, more academic. 00:16:24.509 --> 00:16:26.809 And it stuck. It was a small change, but a very 00:16:26.809 --> 00:16:29.309 savvy one. That is such a practical, brilliant 00:16:29.309 --> 00:16:31.830 adjustment. Okay, another big one from this era. 00:16:31.950 --> 00:16:35.929 Craig v. Boren in 1976. This is the beer case. 00:16:36.230 --> 00:16:39.399 The beer case, right. This was about a very strange 00:16:39.399 --> 00:16:42.519 Oklahoma law that let women buy low alcohol beer, 00:16:42.639 --> 00:16:46.179 3 .2 percent beer at age 18. But men had to wait 00:16:46.179 --> 00:16:48.399 until they were 21. What was the justification 00:16:48.399 --> 00:16:52.139 for that? Because young men are reckless and 00:16:52.139 --> 00:16:54.679 drive drunk. That was the state's entire argument. 00:16:54.860 --> 00:16:57.580 They had statistics that showed a tiny fraction 00:16:57.580 --> 00:17:00.419 more men between 18 and 20 were arrested for 00:17:00.419 --> 00:17:03.659 drunk driving than women. But Ginsburg, who filed 00:17:03.659 --> 00:17:07.039 an amicus or friend of the court. brief challenged 00:17:07.039 --> 00:17:09.640 this. And the result was huge for constitutional 00:17:09.640 --> 00:17:12.880 law. The court established intermediate scrutiny. 00:17:13.359 --> 00:17:15.339 OK, let's break that down for us. We need to 00:17:15.339 --> 00:17:16.900 get a little technical here because this is really 00:17:16.900 --> 00:17:19.380 her legacy as a lawyer. What is intermediate 00:17:19.380 --> 00:17:22.140 scrutiny? OK, so in constitutional law, there 00:17:22.140 --> 00:17:24.319 are different tiers of review the court uses 00:17:24.319 --> 00:17:26.829 to look at laws. At the bottom, you have rational 00:17:26.829 --> 00:17:29.549 basis. The government just needs a rational reason 00:17:29.549 --> 00:17:32.289 to pass a law. Most laws like traffic rules, 00:17:32.529 --> 00:17:34.950 tax codes, they just need to be rational. It's 00:17:34.950 --> 00:17:36.809 a very easy bar to clear. And at the other end? 00:17:36.950 --> 00:17:39.470 At the very top, you have strict scrutiny. This 00:17:39.470 --> 00:17:41.890 is used for laws that discriminate based on race 00:17:41.890 --> 00:17:44.569 or religion. To pass this test, the government 00:17:44.569 --> 00:17:47.069 needs a compelling state interest, and the law 00:17:47.069 --> 00:17:50.349 must be narrowly tailored. It is incredibly hard 00:17:50.349 --> 00:17:53.559 for a law to survive strict scrutiny. Where was 00:17:53.559 --> 00:17:56.039 gender on that spectrum before Ginsburg? It was 00:17:56.039 --> 00:17:59.259 at the bottom, rational basis. As long as the 00:17:59.259 --> 00:18:02.160 state had some reason, any reason at all, they 00:18:02.160 --> 00:18:04.400 could pass laws that treated men and women differently. 00:18:05.339 --> 00:18:07.660 Ginsburg's goal was to get gender treated like 00:18:07.660 --> 00:18:11.099 race, to get it up to strict scrutiny. But she 00:18:11.099 --> 00:18:13.779 didn't quite get that. She didn't. But in Craig 00:18:13.779 --> 00:18:16.539 v. Bourne, the court created a brand new middle 00:18:16.539 --> 00:18:19.640 tier just for gender, intermediate scrutiny. 00:18:20.220 --> 00:18:22.259 Which means what exactly? What's the test? It 00:18:22.259 --> 00:18:24.359 means that for a law that discriminates based 00:18:24.359 --> 00:18:27.220 on gender to be constitutional, the state must 00:18:27.220 --> 00:18:29.940 have an exceedingly persuasive justification. 00:18:30.619 --> 00:18:33.160 It's not as tough as compelling, but it's a whole 00:18:33.160 --> 00:18:35.440 lot tougher than rational. It raised the bar 00:18:35.440 --> 00:18:37.799 massively. So thousands of state and federal 00:18:37.799 --> 00:18:40.079 laws that were based on old stereotypes suddenly 00:18:40.079 --> 00:18:42.720 became unconstitutional overnight. It was a sea 00:18:42.720 --> 00:18:44.819 change. So she didn't get gender treated exactly 00:18:44.819 --> 00:18:47.460 like race, but she moved the needle in a huge, 00:18:47.519 --> 00:18:50.680 huge way. She did. During this. era at the ACLU, 00:18:50.759 --> 00:18:53.279 she argued six cases before the Supreme Court 00:18:53.279 --> 00:18:56.319 and she won five of them. Her friend and later 00:18:56.319 --> 00:18:58.720 colleague, Justice Scalia, called her the Thurgood 00:18:58.720 --> 00:19:01.359 Marshall of women's rights. And that's not hyperbole. 00:19:01.380 --> 00:19:04.619 Not at all. Thurgood Marshall strategically dismantled 00:19:04.619 --> 00:19:07.000 legal segregation as a lawyer before he ever 00:19:07.000 --> 00:19:09.960 became a justice. Ginsburg, in the exact same 00:19:09.960 --> 00:19:13.119 way, strategically dismantled legal gender discrimination 00:19:13.119 --> 00:19:15.720 as a lawyer before she ever became a justice. 00:19:15.940 --> 00:19:18.849 So let's fast forward. In 1980, President Jimmy 00:19:18.849 --> 00:19:21.130 Carter appoints her to the D .C. Circuit Court 00:19:21.130 --> 00:19:23.430 of Appeals, which is often seen as a stepping 00:19:23.430 --> 00:19:25.650 stone to the Supreme Court. Right. It's the second 00:19:25.650 --> 00:19:27.509 most powerful court in the country. And then 00:19:27.509 --> 00:19:30.390 in 1993, President Bill Clinton nominates her 00:19:30.390 --> 00:19:33.289 to the Supreme Court to replace Justice Byron 00:19:33.289 --> 00:19:35.289 White. Now, looking back at the confirmation 00:19:35.289 --> 00:19:37.309 hearings for her, it's really interesting. She 00:19:37.309 --> 00:19:41.490 was confirmed 96 to 3. 96 to 3. That is a margin 00:19:41.490 --> 00:19:44.029 you just do not see today. It's unthinkable. 00:19:44.279 --> 00:19:46.759 It is. And at the time, she was viewed as a moderate, 00:19:46.859 --> 00:19:49.000 a consensus builder. She was good friends with 00:19:49.000 --> 00:19:51.460 conservatives on the D .C. circuit like Antonin 00:19:51.460 --> 00:19:54.700 Scalia and Robert Bork. Clinton wanted someone 00:19:54.700 --> 00:19:57.160 who was eminently qualified, but also confirmable. 00:19:57.200 --> 00:19:59.759 And she fit the bill perfectly. But she did set 00:19:59.759 --> 00:20:01.640 a very important precedent during those hearings, 00:20:01.740 --> 00:20:05.359 didn't she? The Ginsburg rule. Yes. She refused 00:20:05.359 --> 00:20:07.819 to answer any questions about how she would vote 00:20:07.819 --> 00:20:10.000 on specific issues that might come before the 00:20:10.000 --> 00:20:12.539 court like abortion or affirmative action. And 00:20:12.539 --> 00:20:15.200 her reasoning. She said she would give no hints, 00:20:15.299 --> 00:20:18.259 no forecasts, no previews. She argued that to 00:20:18.259 --> 00:20:20.119 do so would compromise her judicial independence 00:20:20.119 --> 00:20:23.630 and show that she had a prejudged opinion. Ironically, 00:20:23.670 --> 00:20:25.490 that precedent has been used by conservative 00:20:25.490 --> 00:20:27.910 nominees ever since to avoid answering tough 00:20:27.910 --> 00:20:30.529 questions about things like Roe v. Wade. So she 00:20:30.529 --> 00:20:32.210 gets on the court. She's the second woman ever 00:20:32.210 --> 00:20:35.210 after Sandra Day O 'Connor. And for a while, 00:20:35.289 --> 00:20:37.849 she is that moderate consensus builder people 00:20:37.849 --> 00:20:41.329 expected. But then comes 1996 and United States 00:20:41.329 --> 00:20:44.150 v. Virginia, the VMI case. This is her masterpiece 00:20:44.150 --> 00:20:46.769 as a majority opinion writer. The Virginia Military 00:20:46.769 --> 00:20:50.109 Institute was a prestigious, state -funded military 00:20:50.109 --> 00:20:52.869 college that had only ever admitted men. And 00:20:52.869 --> 00:20:55.190 their argument was that their special training 00:20:55.190 --> 00:20:57.829 method wouldn't work with women. Exactly. They 00:20:57.829 --> 00:21:00.369 called it their adversative method, which was 00:21:00.369 --> 00:21:04.299 basically... Brutal hazing, zero privacy, intense 00:21:04.299 --> 00:21:06.900 physical discipline. They claimed that the presence 00:21:06.900 --> 00:21:09.480 of women would destroy this unique culture. So 00:21:09.480 --> 00:21:11.940 as a compromise, they offered to create a separate 00:21:11.940 --> 00:21:14.140 school for women, right? The Virginia Women's 00:21:14.140 --> 00:21:16.720 Institute for Leadership. They did. A classic 00:21:16.720 --> 00:21:20.420 separate but equal argument. And Ginsburg, writing 00:21:20.420 --> 00:21:24.069 for the 71 majority of the court, just... Took 00:21:24.069 --> 00:21:26.789 it apart, piece by piece. How so? She looked 00:21:26.789 --> 00:21:28.910 at the proposed women's school and said, this 00:21:28.910 --> 00:21:31.890 is not equal. It didn't have the same prestige, 00:21:32.210 --> 00:21:34.589 the same endowment, the same powerful alumni 00:21:34.589 --> 00:21:37.789 network, the same resources, or the same rigorous 00:21:37.789 --> 00:21:40.450 military curriculum. It was a pale imitation. 00:21:40.970 --> 00:21:42.970 So she applied that intermediate scrutiny standard 00:21:42.970 --> 00:21:45.569 she'd helped create. She did. She said the state's 00:21:45.569 --> 00:21:48.549 justification was not exceedingly persuasive. 00:21:48.769 --> 00:21:51.069 It was based on generalizations about women, 00:21:51.170 --> 00:21:53.210 not on the capabilities of individual women. 00:21:53.200 --> 00:21:55.579 women. She wrote that generalizations about the 00:21:55.579 --> 00:21:57.539 way women are estimates of what is appropriate 00:21:57.539 --> 00:22:00.359 for most women no longer justify denying opportunity 00:22:00.359 --> 00:22:02.680 to women whose talent and capacity place them 00:22:02.680 --> 00:22:04.940 outside the average description. Women seeking 00:22:04.940 --> 00:22:07.599 and fit for a VMI education cannot be denied 00:22:07.599 --> 00:22:10.519 it. That line stuck with me. Exactly. It was 00:22:10.519 --> 00:22:12.759 the combination of her life's work as an advocate. 00:22:13.000 --> 00:22:15.900 It cemented the idea that the law must look at 00:22:15.900 --> 00:22:18.640 the individual, not the stereotype. So she's 00:22:18.640 --> 00:22:21.569 writing these powerful majority opinions. But 00:22:21.569 --> 00:22:24.049 then, over the next decade, the court starts 00:22:24.049 --> 00:22:27.630 to change around her. It shifts right, significantly. 00:22:27.890 --> 00:22:31.210 In 2006, Sandra Day O 'Connor, who was often 00:22:31.210 --> 00:22:34.349 the swing vote, retires. She's replaced by the 00:22:34.349 --> 00:22:37.390 much more conservative Samuel Alito. So suddenly, 00:22:37.490 --> 00:22:39.950 for a few years, RBG is the only woman on the 00:22:39.950 --> 00:22:42.710 bench. She is. And she finds herself in the minority 00:22:42.710 --> 00:22:44.970 more and more often. The court's conservative 00:22:44.970 --> 00:22:47.410 bloc solidifies. And this is when the great dissenter 00:22:47.410 --> 00:22:49.490 is born. This is when the speckled collar comes 00:22:49.490 --> 00:22:51.859 out. The dissenting collar. She actually had 00:22:51.859 --> 00:22:54.500 a specific black collar with gold embroidery 00:22:54.500 --> 00:22:56.720 and rhinestones that she would wear when she 00:22:56.720 --> 00:22:58.859 was reading a dissent from the bench. It was 00:22:58.859 --> 00:23:00.980 a visual signal to the courtroom and the press. 00:23:01.940 --> 00:23:04.680 I disagree, and I'm going to tell you why. One 00:23:04.680 --> 00:23:07.779 of the most famous and impactful of those dissents 00:23:07.779 --> 00:23:11.200 was Ledbetter v. Goodyear in 2007. This case 00:23:11.200 --> 00:23:13.759 just makes my blood boil a little bit. Lily Ledbetter 00:23:13.759 --> 00:23:15.920 worked at a Goodyear tire plant for years. Almost 00:23:15.920 --> 00:23:19.150 20 years. She was getting paid significantly 00:23:19.150 --> 00:23:21.130 less than her male colleagues who were doing 00:23:21.130 --> 00:23:24.150 the exact same job. But she didn't know it. Right. 00:23:24.230 --> 00:23:26.890 Because of pay secrecy. It was against company 00:23:26.890 --> 00:23:29.650 policy to discuss salaries. She only found out 00:23:29.650 --> 00:23:32.250 years later, right before she retired, because 00:23:32.250 --> 00:23:34.490 someone left an anonymous note in her mailbox. 00:23:34.589 --> 00:23:36.950 So she sued for pay discrimination. She did. 00:23:37.210 --> 00:23:40.769 But the Supreme Court majority, in a 5 -4 decision 00:23:40.769 --> 00:23:43.890 written by Justice Alito, said she was too late. 00:23:44.190 --> 00:23:46.250 The law said you have to file a claim within 00:23:46.250 --> 00:23:50.150 180 days of the discriminatory act. They interpreted 00:23:50.150 --> 00:23:53.250 that to mean 180 days from the first bad paycheck 00:23:53.250 --> 00:23:55.829 she received nearly two decades earlier. Even 00:23:55.829 --> 00:23:58.190 if she had no possible way of knowing. Even if 00:23:58.190 --> 00:24:01.069 she couldn't have known. Ginsburg's dissent was 00:24:01.069 --> 00:24:03.509 scathing. She read it aloud from the bench, which 00:24:03.509 --> 00:24:05.829 is a rare and powerful move. She basically said 00:24:05.829 --> 00:24:07.549 the majority was completely out of touch with 00:24:07.549 --> 00:24:09.230 the reality of the workplace. What's her core 00:24:09.230 --> 00:24:11.589 argument? She pointed out that pay discrimination 00:24:11.589 --> 00:24:14.880 happens in secret. It's not a one -time event 00:24:14.880 --> 00:24:17.380 like being fired. It's a series of small, hidden 00:24:17.380 --> 00:24:20.099 injuries. You can't sue for something you don't 00:24:20.099 --> 00:24:22.599 know is happening. She said the court's interpretation 00:24:22.599 --> 00:24:26.660 ignores the reality of wage discrimination. And 00:24:26.660 --> 00:24:28.200 she didn't just complain. She actually called 00:24:28.200 --> 00:24:31.359 for action. She did. She ended her dissent by 00:24:31.359 --> 00:24:34.200 explicitly inviting Congress to fix the court's 00:24:34.200 --> 00:24:36.980 error. She said the ball is in Congress's court. 00:24:37.200 --> 00:24:40.250 And it worked. It did. When Barack Obama took 00:24:40.250 --> 00:24:42.750 office, the very first bill he signed into law 00:24:42.750 --> 00:24:45.990 was the Lilly Ledbetter Fair Pay Act of 2009, 00:24:46.430 --> 00:24:48.589 which effectively overturned the court's decision 00:24:48.589 --> 00:24:52.069 and said the 180 day clock resets with. Every 00:24:52.069 --> 00:24:54.630 new discriminatory paycheck. That is a real world 00:24:54.630 --> 00:24:57.450 impact. It is. It shows that a dissent isn't 00:24:57.450 --> 00:24:59.630 just shouting into the void. It's writing to 00:24:59.630 --> 00:25:01.750 the future. It's providing a roadmap for the 00:25:01.750 --> 00:25:03.769 legislature to correct what the dissenter sees 00:25:03.769 --> 00:25:06.589 as the court's mistakes. Another really big dissent 00:25:06.589 --> 00:25:09.609 was Shelby County v. Holder in 2013. This was 00:25:09.609 --> 00:25:12.250 about the Voting Rights Act of 1965. One of the 00:25:12.250 --> 00:25:14.569 landmark pieces of civil rights legislation. 00:25:14.950 --> 00:25:18.549 The court, in a 5 -4 decision, struck down the 00:25:18.549 --> 00:25:20.950 heart of it. The preclearance requirement. And 00:25:20.950 --> 00:25:23.109 what was that? It was a formula that required 00:25:23.109 --> 00:25:25.670 states and counties with a history of racial 00:25:25.670 --> 00:25:28.670 discrimination in voting to get approval from 00:25:28.670 --> 00:25:30.390 the federal government before they could change 00:25:30.390 --> 00:25:32.349 their voting laws. It was a preventative measure. 00:25:32.549 --> 00:25:35.430 Exactly. And the majority, led by Chief Justice 00:25:35.430 --> 00:25:37.730 Roberts, argued that the country had changed, 00:25:37.950 --> 00:25:40.230 that racism wasn't the pervasive issue it used 00:25:40.230 --> 00:25:43.589 to be. And so this extraordinary federal oversight 00:25:43.589 --> 00:25:46.849 was no longer needed. And Ginsburg had a perfect 00:25:46.849 --> 00:25:49.109 metaphor for that logic. She did. It's one of 00:25:49.109 --> 00:25:51.069 her most famous lines. She said throwing out 00:25:51.069 --> 00:25:52.910 the preclearance provision because it had been 00:25:52.910 --> 00:25:55.450 working to stop discrimination is like throwing 00:25:55.450 --> 00:25:57.670 away your umbrella in a rainstorm because you 00:25:57.670 --> 00:25:59.990 are not getting wet. That line is just so good. 00:26:00.049 --> 00:26:02.549 It's so clear and powerful. It cuts through all 00:26:02.549 --> 00:26:05.789 the legalese. And sadly, given the wave of new 00:26:05.789 --> 00:26:07.869 voting restrictions that passed in many of those 00:26:07.869 --> 00:26:10.589 same states immediately after the decision, many 00:26:10.589 --> 00:26:13.299 would argue she was prophetic. Now, we've painted 00:26:13.299 --> 00:26:16.160 a pretty clear picture of a liberal hero. But 00:26:16.160 --> 00:26:18.579 the deep dive is about the whole picture. And 00:26:18.579 --> 00:26:21.299 the source material shows that RBG wasn't always 00:26:21.299 --> 00:26:23.299 marching in lockstep with the modern progressive 00:26:23.299 --> 00:26:26.339 movement. There's a lot of nuance here. Absolutely. 00:26:26.579 --> 00:26:28.579 And there's no better example of that than Roe 00:26:28.579 --> 00:26:30.740 v. Wade. Yeah, this surprises people. She was 00:26:30.740 --> 00:26:33.420 pro -choice, obviously. But she had some serious 00:26:33.420 --> 00:26:36.559 critiques of the Roe decision itself. She did. 00:26:36.720 --> 00:26:39.579 She thought the legal reasoning was shaky. Roe 00:26:39.579 --> 00:26:42.220 was built on a right to privacy, which the court 00:26:42.220 --> 00:26:44.500 found in the Constitution. It focused on the 00:26:44.500 --> 00:26:47.380 doctor -patient relationship. Ginsburg believed 00:26:47.380 --> 00:26:49.420 it should have been built on the 14th Amendment's 00:26:49.420 --> 00:26:52.680 guarantee of equal protection. Her argument was 00:26:52.680 --> 00:26:55.380 that it's a gender equality issue. Exactly. That 00:26:55.380 --> 00:26:58.079 laws restricting abortion access impose a massive 00:26:58.079 --> 00:27:01.059 burden on women that is not imposed on men, and 00:27:01.059 --> 00:27:03.559 that this denies women full and equal citizenship. 00:27:04.289 --> 00:27:06.450 She thought an equality argument would have been 00:27:06.450 --> 00:27:09.289 a much stronger, more durable foundation. And 00:27:09.289 --> 00:27:11.890 she also thought the court moved too fast, too 00:27:11.890 --> 00:27:15.049 far. She did. This goes back to her incrementalist 00:27:15.049 --> 00:27:18.549 streak. She believed that in 1973, there was 00:27:18.549 --> 00:27:20.670 a democratic movement happening in the states 00:27:20.670 --> 00:27:23.569 to liberalize abortion laws. New York, Hawaii, 00:27:23.849 --> 00:27:25.670 others were already moving in that direction. 00:27:26.130 --> 00:27:28.769 She felt the court stepped in with a sweeping 00:27:28.769 --> 00:27:31.910 nationwide ruling that halted that political 00:27:31.910 --> 00:27:34.609 process in its tracks. And that created a backlash. 00:27:34.950 --> 00:27:37.910 A massive backlash. It galvanized the anti -abortion 00:27:37.910 --> 00:27:40.150 movement and made the issue a central front in 00:27:40.150 --> 00:27:42.630 the culture wars. She wondered if a more gradual 00:27:42.630 --> 00:27:45.200 judicial approach, one that maybe just struck 00:27:45.200 --> 00:27:47.799 down the most extreme anti -abortion law in Texas 00:27:47.799 --> 00:27:50.599 might have built a more durable public consensus 00:27:50.599 --> 00:27:53.339 over time. That is that same incrementalist thinking 00:27:53.339 --> 00:27:56.720 we saw from her ACLU days. She preferred measured 00:27:56.720 --> 00:28:00.180 motions. It's who she was. She was an institutionalist 00:28:00.180 --> 00:28:02.140 at heart. What about her views on criminal justice? 00:28:02.579 --> 00:28:04.319 It was a mixed bag. On the Fourth Amendment, 00:28:04.500 --> 00:28:06.480 which protects against unreasonable search and 00:28:06.480 --> 00:28:08.799 seizure, she could be a very strong defender 00:28:08.799 --> 00:28:11.220 of individual rights. There's the famous strip 00:28:11.220 --> 00:28:13.380 search case, Safford Unified School District, 00:28:13.500 --> 00:28:16.559 Vera Redding. 2009 this is the one where a 13 00:28:16.559 --> 00:28:19.660 year old girl an honor roll student was strip 00:28:19.660 --> 00:28:22.200 searched by school officials because another 00:28:22.200 --> 00:28:25.660 student said she might have ibuprofen ibuprofen 00:28:26.279 --> 00:28:28.559 not heroin, over -the -counter pain medication. 00:28:29.180 --> 00:28:32.039 During oral arguments, some of the male justices 00:28:32.039 --> 00:28:33.759 were, well, they were making light of it, suggesting 00:28:33.759 --> 00:28:36.019 it wasn't a big deal, that kids change for gym 00:28:36.019 --> 00:28:38.160 class all the time. And Ginsburg was not having 00:28:38.160 --> 00:28:41.579 it. She was furious. She later told an interviewer, 00:28:41.599 --> 00:28:45.200 they have never been a 13 -year -old girl. She 00:28:45.200 --> 00:28:47.839 understood the profound humiliation and trauma 00:28:47.839 --> 00:28:50.799 of that experience, and her perspective was crucial. 00:28:51.140 --> 00:28:54.140 The court ultimately ruled 8 -1 that the search 00:28:54.140 --> 00:28:56.819 was unconstitutional. But then there are areas 00:28:56.819 --> 00:28:58.880 where her record is more complicated for liberals, 00:28:59.039 --> 00:29:02.000 especially on Native American law. Yes. This 00:29:02.000 --> 00:29:04.880 is a prime example of her complexity. In 2005, 00:29:05.019 --> 00:29:07.099 she wrote the majority opinion in City of Cheryl 00:29:07.099 --> 00:29:10.039 v. Oneida, Indian Nation. This one is a very 00:29:10.039 --> 00:29:12.240 difficult ruling for indigenous rights advocates. 00:29:12.420 --> 00:29:16.059 It is. The Oneida Nation had, over time, bought 00:29:16.059 --> 00:29:18.420 back land on the open market that was historically 00:29:18.420 --> 00:29:21.500 part of their reservation. They argued that because 00:29:21.500 --> 00:29:24.319 it was their ancestral land, it should be sovereign 00:29:24.319 --> 00:29:27.579 tribal land again, exempt from local taxes. And 00:29:27.579 --> 00:29:29.900 Ginsburg wrote the opinion saying no. She did. 00:29:30.099 --> 00:29:32.660 She used concepts like the doctrine of discovery 00:29:32.660 --> 00:29:35.079 and the legal principle of latches, which basically 00:29:35.079 --> 00:29:38.180 means you waited too long. She argued that the 00:29:38.180 --> 00:29:40.240 area had been governed by New York for so long 00:29:40.240 --> 00:29:43.039 and so many non -Indians now live there that 00:29:43.039 --> 00:29:45.339 returning it to tribal sovereignty would be too 00:29:45.339 --> 00:29:47.619 disruptive. Too disruptive. A very pragmatic 00:29:47.619 --> 00:29:50.839 argument. It was. But it was seen by many as 00:29:50.839 --> 00:29:53.700 relying on colonial legal doctrines to deny justice. 00:29:54.019 --> 00:29:57.049 However, to show the complexity, fast - forward 00:29:57.049 --> 00:29:59.769 to near the end of her life in 2020. She joined 00:29:59.769 --> 00:30:02.490 the majority in McGirt v. Oklahoma, a landmark 00:30:02.490 --> 00:30:04.690 decision that affirmed that a huge portion of 00:30:04.690 --> 00:30:07.990 eastern Oklahoma was, in fact, still Native American 00:30:07.990 --> 00:30:10.470 reservation land. So her views on this clearly 00:30:10.470 --> 00:30:12.490 evolved, or at least the application of her principles 00:30:12.490 --> 00:30:14.130 depended heavily on the specific facts of the 00:30:14.130 --> 00:30:16.430 case. It just goes to show you can't put these 00:30:16.430 --> 00:30:19.930 justices in a simple ideological box. They contain 00:30:19.930 --> 00:30:22.710 multitudes. No, you can't. OK, let's pivot from 00:30:22.710 --> 00:30:26.180 the law. to the person behind the robes. Because 00:30:26.180 --> 00:30:28.019 you can't really talk about Ruth without talking 00:30:28.019 --> 00:30:31.440 about Marty. Their marriage was truly modern 00:30:31.440 --> 00:30:33.539 before its time. We mentioned he was the outgoing 00:30:33.539 --> 00:30:36.279 one, the social butterfly. He was also the chef. 00:30:36.640 --> 00:30:39.440 Ruth couldn't cook. By all accounts, she was 00:30:39.440 --> 00:30:42.339 a terrible cook. Their children basically staged 00:30:42.339 --> 00:30:44.619 an intervention and banned her from the kitchen. 00:30:45.240 --> 00:30:47.359 Marty took over the cooking completely and became 00:30:47.359 --> 00:30:49.579 a renowned amateur chef. And he was her biggest 00:30:49.579 --> 00:30:51.920 cheerleader professionally. Our absolute biggest. 00:30:52.200 --> 00:30:54.640 In the 1990s, when there was a vacancy on the 00:30:54.640 --> 00:30:56.779 Supreme Court, he was the one campaigning for 00:30:56.779 --> 00:30:59.039 her to get the nomination. He was calling in 00:30:59.039 --> 00:31:01.740 favors, working his network of lawyer and politician 00:31:01.740 --> 00:31:04.420 friends. He knew she wouldn't promote herself, 00:31:04.579 --> 00:31:07.299 so he did it for her. A true partnership. A 50 00:31:07.299 --> 00:31:09.960 -50 partnership in an era when that was all. 00:31:13.299 --> 00:31:16.900 And in true RBG fashion, she was back on the 00:31:16.900 --> 00:31:19.700 bench the very next day. She was. She said work 00:31:19.700 --> 00:31:22.039 was what he would have wanted, and work was how 00:31:22.039 --> 00:31:24.960 she coped. It was her sanctuary. And then there's 00:31:24.960 --> 00:31:27.359 the other man in her life, Justice Antonin Scalia, 00:31:27.720 --> 00:31:33.839 the ultimate odd couple. They disagreed profoundly 00:31:33.839 --> 00:31:37.920 on almost every major legal question. But they 00:31:37.920 --> 00:31:39.799 were the best of friends. They vacationed together, 00:31:40.000 --> 00:31:42.619 right? They did. They spent New Year's Eve together 00:31:42.619 --> 00:31:44.819 every year. There are famous pictures of them 00:31:44.819 --> 00:31:47.059 riding an elephant together in India. And the 00:31:47.059 --> 00:31:49.839 opera? They were both absolute opera fanatics. 00:31:49.940 --> 00:31:52.500 They even appeared as extras in productions together. 00:31:52.819 --> 00:31:55.160 There's a whole comedic opera written about their 00:31:55.160 --> 00:31:57.799 friendship called Skoliagensburg. What does that 00:31:57.799 --> 00:32:00.500 friendship tell us? In today's polarized world, 00:32:00.680 --> 00:32:03.559 it seems impossible. It tells us that they valued 00:32:03.559 --> 00:32:06.900 intellect and collegiality over ideology. They 00:32:06.900 --> 00:32:08.799 could fight tooth and nail about the Constitution 00:32:08.799 --> 00:32:10.839 in the morning and share a bottle of wine and 00:32:10.839 --> 00:32:13.380 a good meal in the evening. Scalia once said, 00:32:13.460 --> 00:32:16.960 I attack ideas. I don't attack people. Ruth appreciated 00:32:16.960 --> 00:32:19.579 that. She famously said that Scalia made her 00:32:19.579 --> 00:32:21.559 opinions better because he would read her drafts 00:32:21.559 --> 00:32:23.240 and find all the weak spots in her arguments. 00:32:23.559 --> 00:32:26.160 Iron sharpens iron. Exactly. It's a lesson in 00:32:26.160 --> 00:32:28.819 civility that feels very distant right now. Now, 00:32:28.839 --> 00:32:30.599 we also have to talk about her physical resilience. 00:32:31.440 --> 00:32:33.740 Because looking at her, especially in those later 00:32:33.740 --> 00:32:38.220 years, she looked so frail. But she was. She 00:32:38.220 --> 00:32:41.299 was a tank. An absolute tank. She survived five 00:32:41.299 --> 00:32:44.220 different bouts of cancer. Colon cancer in 1999. 00:32:44.539 --> 00:32:47.900 Then pancreatic in 2009. She had a stent put 00:32:47.900 --> 00:32:50.480 in her heart. She had cancerous nodules removed 00:32:50.480 --> 00:32:53.400 from her lung in 2018. And then the pancreatic 00:32:53.400 --> 00:32:56.190 cancer came back. And through it all... She rarely 00:32:56.190 --> 00:32:58.829 missed oral arguments. She'd schedule chemotherapy 00:32:58.829 --> 00:33:01.450 for Fridays so she could recover over the weekend, 00:33:01.589 --> 00:33:03.789 be back on the bench Monday morning. It was an 00:33:03.789 --> 00:33:06.529 unbelievable display of will. And the pushups. 00:33:06.630 --> 00:33:08.549 We have to mention the workouts. The pushups. 00:33:08.630 --> 00:33:11.410 After her first cancer bout, she hired a personal 00:33:11.410 --> 00:33:14.170 trainer, Bryant Johnson, a former Army Special 00:33:14.170 --> 00:33:16.549 Forces guy. She started training with him twice 00:33:16.549 --> 00:33:19.480 a week. At age 80, she could do 20 push -ups. 00:33:19.500 --> 00:33:21.660 She can barely do 20 push -ups now. Most people 00:33:21.660 --> 00:33:25.440 can't. It became part of her legend. The RBG 00:33:25.440 --> 00:33:29.220 workout became a book, a phenomenon. It was this 00:33:29.220 --> 00:33:31.720 act of reclaiming physical strength when her 00:33:31.720 --> 00:33:34.160 body was under assault. She wasn't just a brain 00:33:34.160 --> 00:33:36.500 in a jar. She was physically fighting to stay 00:33:36.500 --> 00:33:38.720 in the game. And all of that, the descents, the 00:33:38.720 --> 00:33:41.819 workouts, the resilience, it all feeds into the 00:33:41.819 --> 00:33:45.380 notorious RBG persona. How did she feel about 00:33:45.380 --> 00:33:48.359 all that? The t -shirts, the tattoos, the memes? 00:33:48.740 --> 00:33:51.380 She loved it. She completely owned it. She had 00:33:51.380 --> 00:33:53.480 a supply of the t -shirts in her chambers that 00:33:53.480 --> 00:33:55.640 she would give out as gifts. She thought it was 00:33:55.640 --> 00:33:58.019 hilarious that a law student blogger had connected 00:33:58.019 --> 00:34:01.519 her, this tiny, serious octogenarian judge, to 00:34:01.519 --> 00:34:04.039 the rapper Notorious B .I .G. It bridged the 00:34:04.039 --> 00:34:06.039 gap, didn't it? It made the Supreme Court feel 00:34:06.039 --> 00:34:09.679 relevant and, dare I say... Cool to a generation 00:34:09.679 --> 00:34:11.219 that might not have paid attention otherwise. 00:34:11.480 --> 00:34:14.099 It absolutely did. But it also created a complication 00:34:14.099 --> 00:34:16.199 because when you become an icon, a superhero, 00:34:16.460 --> 00:34:19.260 people expect you to be invincible. And that 00:34:19.260 --> 00:34:21.699 leads us to the final and very difficult chapter 00:34:21.699 --> 00:34:24.079 of her story. The retirement question. This is 00:34:24.079 --> 00:34:26.860 the elephant in the room of her legacy. During 00:34:26.860 --> 00:34:29.619 the Obama years, specifically around 2013 and 00:34:29.619 --> 00:34:33.179 2014, there was a lot of pressure from liberal 00:34:33.179 --> 00:34:36.380 commentators and legal scholars for her to retire. 00:34:36.579 --> 00:34:39.730 And the logic was what? The logic was she was 00:34:39.730 --> 00:34:42.349 in her early 80s. She'd had cancer twice already, 00:34:42.469 --> 00:34:44.949 and the Democrats held both the White House and 00:34:44.949 --> 00:34:48.309 the Senate. It was the perfect window for President 00:34:48.309 --> 00:34:51.369 Obama to appoint a young liberal successor who 00:34:51.369 --> 00:34:54.150 could serve for decades. And she refused. She 00:34:54.150 --> 00:34:57.269 did. She famously invited Obama to lunch at the 00:34:57.269 --> 00:34:59.889 court, but she did not step down. Her argument 00:34:59.889 --> 00:35:03.150 essentially was, who would you prefer? She looked 00:35:03.150 --> 00:35:05.489 at the political climate, the rise of the filibuster, 00:35:05.489 --> 00:35:08.849 the intense gridlock, and she genuinely didn't 00:35:08.849 --> 00:35:11.210 believe Obama could get a true progressive confirmed. 00:35:11.690 --> 00:35:13.710 She thought the nominee would have to be a compromise 00:35:13.710 --> 00:35:15.349 candidate. She thought she was still the best 00:35:15.349 --> 00:35:17.690 person for the job. She did. And she wanted to 00:35:17.690 --> 00:35:20.710 emulate justices like Brandeis and Stevens, who 00:35:20.710 --> 00:35:22.809 served until they were very old, as long as she 00:35:22.809 --> 00:35:25.010 felt she was mentally sharp. And by all accounts, 00:35:25.210 --> 00:35:28.130 she was sharp until the very end. She was. But 00:35:28.130 --> 00:35:31.210 she was making a gamble. A huge gamble on the 00:35:31.210 --> 00:35:34.269 2016 election. She expected Hillary Clinton to 00:35:34.269 --> 00:35:36.670 win and to name her successor. It did not happen. 00:35:36.809 --> 00:35:39.789 No, Donald Trump won. The Republicans held the 00:35:39.789 --> 00:35:42.389 Senate and Ruth held on. She fought through more 00:35:42.389 --> 00:35:44.710 cancer. She fought through broken ribs from a 00:35:44.710 --> 00:35:47.969 fall. But on September 18th, 2020, she died. 00:35:48.230 --> 00:35:50.789 On the evening of Rosh Hashanah, the Jewish New 00:35:50.789 --> 00:35:53.510 Year. Yes. There is a Jewish teaching that the 00:35:53.510 --> 00:35:55.730 most righteous people die at the very end of 00:35:55.730 --> 00:35:58.150 the year on Rosh Hashanah because they are needed 00:35:58.150 --> 00:36:00.789 until the very last moment. It felt deeply poetic 00:36:00.789 --> 00:36:02.949 to her admirers. And she was honored for that 00:36:02.949 --> 00:36:05.030 service. She was the first woman and the first 00:36:05.030 --> 00:36:08.150 Jew to lie in state at the U .S. Capitol. A historic 00:36:08.150 --> 00:36:11.130 honor. But the political aftermath was immediate 00:36:11.130 --> 00:36:13.670 and brutal. Her dying wish, which she dictated 00:36:13.670 --> 00:36:16.110 to her granddaughter, was that she not be replaced 00:36:16.110 --> 00:36:18.329 until a new president is installed. But we were 00:36:18.329 --> 00:36:20.590 just weeks away from the 2020 election. And that 00:36:20.590 --> 00:36:22.780 wish was. not honored. Amy Coney Barrett was 00:36:22.780 --> 00:36:25.260 nominated and confirmed in record time just days 00:36:25.260 --> 00:36:28.019 before the election, cementing a 6 -3 conservative 00:36:28.019 --> 00:36:30.519 supermajority on the court. It was the exact 00:36:30.519 --> 00:36:32.800 scenario that Ginsburg and her supporters had 00:36:32.800 --> 00:36:36.059 feared and tried to prevent. It was. And by staying 00:36:36.059 --> 00:36:38.139 on the bench, she inadvertently allowed it to 00:36:38.139 --> 00:36:40.800 happen under a Republican administration. It's 00:36:40.800 --> 00:36:43.380 a tragic irony in a career that was so defined 00:36:43.380 --> 00:36:46.760 by foresight and strategic thinking. It is. And 00:36:46.760 --> 00:36:49.679 it certainly complicates her legacy. But as you 00:36:49.679 --> 00:36:52.139 say, it doesn't erase it. No, it doesn't. So 00:36:52.139 --> 00:36:54.360 let's wrap this all up. When we look at this 00:36:54.360 --> 00:36:57.300 entire stack of research, what is the ultimate 00:36:57.300 --> 00:37:00.239 takeaway from the life and law of Ruth Bader 00:37:00.239 --> 00:37:02.519 Ginsburg? The takeaway, I think, is that she 00:37:02.519 --> 00:37:05.000 changed the world for American women. and for 00:37:05.000 --> 00:37:07.239 American men. And she didn't do it by waving 00:37:07.239 --> 00:37:09.719 a magic wand or leading a protest in the streets. 00:37:09.940 --> 00:37:12.940 She did it by sitting in a library, reading thousands 00:37:12.940 --> 00:37:15.460 of pages of case law, by finding the perfect 00:37:15.460 --> 00:37:17.840 plaintiffs, and by knitting together a legal 00:37:17.840 --> 00:37:20.880 argument, stitch by careful stitch, over decades. 00:37:21.159 --> 00:37:22.739 From the woman who couldn't get a job to the 00:37:22.739 --> 00:37:25.000 justice who redefined the very meaning of equality 00:37:25.000 --> 00:37:27.519 under the law. Precisely. She proved that the 00:37:27.519 --> 00:37:30.400 law is not static. It can be moved. But you have 00:37:30.400 --> 00:37:33.260 to be willing to do the slow, patient, meticulous 00:37:33.260 --> 00:37:35.199 work. So here's the thought I want to leave all 00:37:35.199 --> 00:37:38.039 of you with today. RBG was the master of the 00:37:38.039 --> 00:37:40.679 long game. She believed in incremental change, 00:37:40.840 --> 00:37:43.920 in consensus, in measured motions. But in her 00:37:43.920 --> 00:37:46.519 final years, she became an icon of resistance 00:37:46.519 --> 00:37:50.400 in a polarized, fast -paced, mean -driven world. 00:37:50.559 --> 00:37:54.099 The question is... Is her style of patient, strategic 00:37:54.099 --> 00:37:57.079 legal architecture still possible? Or has the 00:37:57.079 --> 00:38:00.139 era of the consensus builder truly passed? In 00:38:00.139 --> 00:38:01.860 a world that seems to demand instant results 00:38:01.860 --> 00:38:04.539 and radical shifts, can an incrementalist still 00:38:04.539 --> 00:38:06.719 change the world? Something to think about. Thanks 00:38:06.719 --> 00:38:07.820 for diving in with us. Thank you.