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After all the Court packing, Randy and I will have to write a book about the current members of the Court: 100 Supreme Court Justices Everyone Should Know.

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In 2016, I wrote an article titled, “SCOTUS after Scalia.” I wrote a section on the short-sightedness of the Chief Justices’s so-called “long game.” What I wrote in 2016 resonates even more so today:

Finally, the “long game” depends on a stable composition on the bench. Richard Re notes an inherent limitation in the doctrine of one last chance, as applied to the so-called long game: “judicial majorities must be stable over a period of time before they can issue major decisions.” 241 During the periods from NAMUDNO to Shelby County, and from WRTL to Citizens United, the same five-vote blocks were present (considering that Justices Souter and Stevens were replaced by like-minded jurists in Justices Sotomayor and Kagan).242This consistency is a historical outlier. The Supreme Court does not exist in a vacuum, where stasis is maintained. Everything changes. Even if the Chief Justice has a broad vision of what he wants to accomplish, had President Clinton appointed three new Justices, all of those plans would have vanished instantly. His first decade of planning and calculating would have been for naught, and the Chief Justice would have been in dissent for a generation. Even if a Republican President appoints two or three Justices, there is no way for Roberts to know how they’ll vote. Maybe those Justices will also have a different master plan, and will not agree with the Chief’s plan. Or maybe the nominee will turn out to be another Souter or Stevens. Or what if the plan falls apart much sooner?

The Chief Justice may cast votes to strategically preserve the Court’s “legitimacy” (whatever that is). But what he cannot anticipate are changes in the composition of the Court. Whatever “capital” Robert built up in the Tax Return and DACA cases will be burned by exogenous circumstances. And I think the odds are high that the Democrats expand the Supreme Court as soon as they can.

The Chief suffers from what Hayek described as the “Fatal conceit”

Fisher and Harris illustrate the fundamental problem with a long game. The notion that a single Chief Justice can single-handedly shape the law over the course of decades, as if he were moving pieces around on a three-dimensional chess set, suffers from what F.A. Hayek referred to as the “fatal conceit.”258 Our society as a whole is infinitely more complex than any one person could ever possibly understand. It is the “fatal conceit” of central planners that they presuppose enough knowledge to control all aspects of human existence.

The best laid schemes of mice and men, often go awry.

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2016:

Asked if the Senate had an obligation to assess Judge Garland’s qualifications, her answer was immediate.

“That’s their job,” she said. “There’s nothing in the Constitution that says the president stops being president in his last year.”

2020:

“My most fervent wish is that I will not be replaced until a new president is installed.”

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Ruth Bader Ginsburg, the pioneering lawyer who became a liberal hero and pop culture icon during her lengthy career on the U.S. Supreme Court, died today at the age of 87.

Ginsburg was already a towering figure in legal circles when President Bill Clinton appointed her to the Supreme Court in 1993. In 1972 Ginsburg co-founded the Women’s Rights Project at the American Civil Liberties Union (ACLU), where she played a central role in the campaign to overturn a series of legal precedents that formally enshrined the inequality of women. Slowly but surely, Ginsburg and her allies moved the law in their preferred direction. She then capped off that remarkable career by becoming an accomplished federal judge.

Ginsburg capped off her judicial career by becoming a bona fide celebrity. Popularly known among her legions of fans as “Notorious RBG” (a play on the name of the late rapper Notorious BIG), Ginsburg has enjoyed a sort of rock star status in recent years, with her praises sung in books, articles, documentaries, movies, TV interviews, Saturday Night Live skits, and countless internet memes.

Given her massive popularity, especially among the younger progressive set, it is easy to forget that Ginsburg was not always a darling of the left. For example, Ginsburg once caused real discomfort in feminist legal circles by repeatedly criticizing Roe v. Wade, the 1973 ruling which recognized a woman’s constitutional right to have an abortion. The Court “ventured too far” in Roe when it “called into question the criminal abortion statutes of every state,” Ginsburg wrote in 1985. This “heavy-handed judicial intervention was difficult to justify,” she argued, “and appears to have provoked, not resolved, conflict.”

What is more, Ginsburg insisted, Roe itself stood on dubious legal foundations. Roe‘s author, Justice Harry Blackmun, had grounded the right to abortion in “personal privacy, somehow sheltered by due process,” as Ginsburg put it. It would have been much better, she declared, if the right had been rooted in “a constitutionally based sex-equality perspective.”

She took aim at Roe yet again in a 1993 lecture at New York University School of Law. The Texas statute at issue (which banned all abortions except where the life of the mother was at stake) “intolerably shackled a woman’s autonomy,” she observed. But “suppose the Court had stopped there, rightly declaring unconstitutional the most extreme brand of law in the nation, and had not gone on, as the Court did in Roe, to fashion a regime blanketing the subject, a set of rules that displaced virtually every state law then in force. Would there have been the 20-year controversy we have witnessed?”

In other words, Ginsburg not only threw shade at Roe‘s reasoning, but she argued that the far-reaching decision actually gave the anti-abortion movement a boost. Not exactly music to the ears of most pro-choice activists.

Ginsburg had her share of libertarian legal critics too. In 2012, when the Supreme Court was weighing the constitutionality of the Patient Protection and Affordable Care Act, libertarian scholars and activists were at the forefront of the legal wrangling, arguing that Congress lacked the lawful authority under the Commerce Clause to compel every American to buy health insurance. Ginsburg would denounce that argument as “stunningly retrogressive.”

In 2005, when the city of New London, Connecticut, sought to broaden its tax base by bulldozing a working-class neighborhood and handing the land over to private developers, Ginsburg showed little interest in the homeowners’ constitutional objections. “The critical fact on the city side,” she told Institute for Justice lawyer Scott Bullock, lead attorney for the homeowners, during oral arguments in Kelo v. City of New London, “is that this was a depressed community and [the government] wanted to build it up, get more jobs.” Ginsburg later joined Justice John Paul Stevens’ majority opinion, which asserted that when it came to the use of eminent domain, the government should enjoy “broad latitude in determining what public needs justify the use of the takings power.”

With Ginsburg dead, all eyes now turn to the U.S. Senate. In 2016, with a presidential election on the horizon, Senate Republicans refused to even hold hearings on President Barack Obama’s SCOTUS nominee, Merrick Garland, thereby setting the stage for President Donald Trump to appoint Neil Gorsuch in 2017.

What will those same Senate Republicans do now that another SCOTUS vacancy has arisen with a presidential election looming? According to Senate Majority Leader Mitch McConnell (R–Ky.), whomever Trump picks to replace Ginsburg “will receive a vote on the floor of the United States Senate.”

Expect the Trump administration to name a nominee quickly. Who might get the nod? One name that is sure to be on the shortlist is Amy Coney Barrett.

A former Notre Dame law professor, Barrett was confirmed to the U.S. Court of Appeals for the 7th Circuit in October 2017 after a heated confirmation hearing before the Senate Judiciary Committee. In particular, Barrett, a committed Catholic who has written frequently about matters of faith and law, was sharply queried by Sen. Dianne Feinstein (D–Calif.) about whether her religious views would prevent her from serving as an impartial jurist. “The dogma lives loudly within you, and that’s of concern when you come to big issues that people have fought for years in this country,” Feinstein said.

Feinstein’s remarks quickly transformed Barrett into something of a folk hero among social conservatives, who saw the Democratic senator as attacking one of their own. Those same social conservatives would undoubtedly go to the mattresses for a Barrett SCOTUS nomination. Put differently, by nominating Barrett, Trump would be throwing a heap of red meat to his supporters on the religious right. The resulting Senate confirmation hearings would go full-tilt culture war.

One thing is certain: The death of Ruth Bader Ginsburg means that American politics are about to get a whole lot crazier.

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As many of you know, I was a Ginsburg law clerk on two separate occasions—when she was on the appeals court, and then again during her first term at SCOTUS. I know that RBG was perhaps not the favored Supreme Court Justice for many of the readers of this blog—which is fair enough—but I hope you will allow me some personal reminiscences as we all process the meaning of her death and, more importantly, her life and legacy.

I owe Ruth Ginsburg a great deal. My grades were pretty good when she hired me the first time, but, as she herself often admitted, two things got me over the hump in competition with all the other law students whose grades were pretty good: first, that I had an asterisk on my CV, to indicate that I had stayed home with my infant daughter Sarah for the first two years of her life while my wife continued working (RBG liked that arrangement a lot!), and, second, that instead of using one of my boring law school practice memos as a writing sample, I used a paper I had written on “Contract Law in Richard Wagner’s Ring Cycle” (and she really liked that).

Most of what I know about writing I learned from her.  The rules are actually pretty simple:  Every word matters.  Don’t make the simple complicated, make the complicated as simple as it can be (but not simpler!). You’re not finished when you can’t think of anything more to add to your document; you’re finished when you can’t think of anything more that you can remove from it. She enforced these principles with a combination of a ferocious—almost a terrifying—editorial pen, and enough judicious praise sprinkled about to let you know that she was appreciating your efforts, if not always your end-product. And one more rule: While you’re at it, make it sing. At least a little; legal prose is not epic poetry or the stuff of operatic librettos, but a well-crafted paragraph can help carry the reader along, and is always a thing of real beauty.

She had the kind of fierce integrity that I think we all would want to see in a judge; she was always determined to get it right, to do right by the litigants and to do right by the law. She had her biases and her blind spots; we all do.  But I have often said that if my life were on the line, I’d be happy if she were on the bench, because she would be as fair-minded when weighing the evidence as one could ever ask for.

By an unfortunate coincidence, the two years I clerked for her (’86-7 and ’93-4) were marred by some personal tragedies in my own life; my brother-in-law, Howard Eisen, died unexpectedly in the spring of ’87, and my dad was diagnosed with cancer and died in the spring of ’94. RBG could not have been more supportive and comforting during what were difficult periods for me.  When my dad was declining and it was clear he didn’t have much longer to live, she wrote to him and my mother, sending them her best wishes and saying all sorts of nice things about what a great law clerk I was, how proud they should be, how she couldn’t get along without my help, etc. etc.  She knew, and I knew, and even my parents knew, that she was exaggerating for effect—but I was there with them when the letter arrived, and they both wept with joy and pride when they read it.  It was a lovely thing for her to do, and I could never find the words to thank her enough for having done it.

During my time with her she—we—had some pretty rough encounters with some of her colleagues, notably Justices Starr, Bork, Scalia, and Williams on the DC Circuit and, of course, with Justice Scalia on the High Court.  She could fight with the best of them—but I never heard or saw or even intimated anything other than respect and even, often, affection for her adversaries in these battles. No snide remarks, no nasty innuendoes, none of that. She valued civility and collegiality very, very highly, and I think she helped to dignify the process of judging, and helped make those she was working with better as a result.

And my personal favorite RBG moment: In 1994, I arranged for my daughter’s 6th grade class to come and take a tour of the Court.  After walking through the main courtroom and the courtyards and the portrait galleries and the rest, we all gathered in the East Conference Room and RBG came down to talk to them.  She took some questions from the kids—their teachers had made sure that the kids had thought of some questions beforehand, and they all came through; “How did you become a judge?” and “What’s the hardest part about being a judge?” and “Do you like being a judge?” and the like.  Finally, she said she could take one more question before she had to go back to work, and it was “What case that you worked on that you enjoyed the most?”

So she told the story of Weinberger v. Wiesenfeld—the case from early on in her days at the ACLU Women’s Rights Project. Mr. Wiesenfeld, the plaintiff, had just lost his wife, leaving him alone with their newborn son. He wanted to take time off from work so he could stay home with the baby, but he discovered that he was not entitled to spousal benefits under the Social Security regulations—although if he had died, his wife would have received the supplemental payments.  RBG took his case and won a famous victory in the Supreme Court. So she told the story, and then she added: “And just the other day that little boy wrote me a letter, to let me know that he had just been accepted to Columbia Law School …”  It was a very touching moment—the teachers and parent/chaperones who had come along on the tour all had tears in their eyes, and even the 6th graders knew, deep down, that they had heard something pretty special from a pretty special person.

Her legacy is prodigious.  She transformed American law through her work on equal rights for all, and, especially in her later years, she served as an inspirational symbol for millions of people—especially, though hardly exclusively, for millions of young girls who drew strength from her work and from her life.

One final recollection.  One thing that RBG and I shared, besides our love of opera, was that we were both Brooklyn-born and -bred (and proud of it!). Earlier this year, when I was doing some research putting together a compilation of her writings, I came across this essay that she wrote for the Bulletin of the East Midwood Jewish Center (the synagogue in my old neighborhood) in 1946 when she was 13 years old. It is, I think, a fitting epitaph for a life very well-lived.  R.I.P.

One People—An Essay by Ruth Bader, Age 13 (June, 1946)

Bulletin of the East Midwood Jewish Center, Brooklyn NY (June 1, 1946)

The war has left a bloody trail and many deep wounds not too easily healed. Many people have been left with scars that take a long time to pass away. We must never forget the horrors which our brethren were subjected to in Bergen-Belsen and other Nazi concentration camps. Then, too, we must try hard to understand that for righteous people hate and prejudice are neither good occupations nor fit companions. As Rabbi Alfred Bettleheim once said: “Prejudice saves us a painful trouble, the trouble of thinking.”

In our beloved land families were not scattered, communities not erased nor our nation destroyed by the ravages of the World War. Yet, dare we be at ease? We are part of a world whose unity has been almost completely shattered. No one can feel free from danger and destruction until the many torn threads of civilization are bound together again. We cannot feel safe until every nation, regardless of weapons or power, will meet together in good faith, the people worthy of mutual association.  There can be a happy world and there will be once again, when men and women create a strong bond towards one another, a bond unbreakable by a studied prejudice or a passing circumstance.

Then and only then shall we have a world whose structure is the Brotherhood and Sisterhood of men and women.

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