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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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Supreme Court Justice Ruth Bader Ginsburg passed away earlier this evening. Much will be written about the political and legal effects of her passing. In this post, I would like to set that aside and pay tribute to her legacy.

Justice Ginsburg’s most significant legacy will surely be her contribution to the struggle for gender equality in this country. As head of the ACLU Women’s Rights Project in the 1970s, she litigated many of the landmark cases that led the courts to conclude that laws discriminating on the basis of sex are presumptively unconstitutional. These successes may seem inevitable today; but it was far from certain they could have been accomplished as quickly as they were without RBG’s skillful leadership and legal strategy. She further entrenched and extended these successes with her jurisprudence on the Supreme Court, most notably in her important opinion for the Court in United States v. Virginia (1996).

The fight for gender equality was and is a complex process in which many people and institutions have played important roles. But at least in the legal arena, it is hard to think of any one person who made a greater contribution to it than did Ruth Bader Ginsburg.

On many other issues that came before the Supreme Court during her 27-year tenure, RBG’s jurisprudence will be contentious for at least some time to come. There is plenty of room for dispute over whether she was right about such questions as abortion, affirmative action, and campaign finance restrictions, for example. I myself believe she was often wrong in her opposition to almost all all judicial enforcement of structural constitutional limits on federal power. In this field, she tended to vote in favor of very broad federal power even in some cases where other liberal justices went the other way, as in Murphy v. NCAA (2018). This suspicion of federalism was entirely understandable in a liberal of her generation, many of whom associated the concept with “states’ rights” resistance to racial equality and other progressive causes. Only in more recent years has the ideological valence of constitutional federalism begun to shift.

On less ideological charged issues, it is notable that Justice Ginsburg was often a “formalist” advocate of sticking to text and clear legal rules, in that respect similar to her friend and and ideological opposite Justice Antonin Scalia. The much-praised friendship between the two of them was an example to the rest of us of how we can maintain civil relations with—and learn from—those we profoundly disagree with. Justice Ginsburg was -deservedly—an icon of the legal left, much as Scalia (whose legacy I discussed here and here) was for many on the right.

It is easy to praise judicial opinions (and other writings) we agree with. In Ginsburg’s case, it is worth noting that I often found much of value in her writings even when I thought she was wrong. For example, I disagreed with her bottom-line conclusion in her lonely solo dissent in Fisher v. University of Texas I (2013), a key affirmative action case. But I thought she made a good point in arguing that there is generally little difference between explicit racial preferences and facially neutral admissions criteria enacted for the specific purpose of increasing the representation of some racial and ethnic groups relative to others. Indeed, for reasons she effectively explained, the latter are often actually worse than the forer.

Much more will no doubt be said about Justice Ginsburg’s life and legacy in the coming days. For now, I will close by offering condolences to those of her friends, family, law clerks, and colleagues who may happen to read this. A giant has passed. We may not see her like again.

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Since the Eisenhower administration, four Justices have died in office.

• Justice Robert Jackson died in 1954.
• Chief Justice William Rehnquist died in 2005.
• Justice Antonin Scalia died in 2016.
• Justice Ruth Bader Ginsburg died in 2020.

It is remarkable that we have had two Justices, die four years apart, in election years.

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A few moments ago, I posted my statement about Justice Ginsburg’s death. Here, I would like to discuss how her passing will affect the Supreme Court before her successor is confirmed.

First, there are now only eight Justices. As a result, any emergency applications will find the Court short-handed. The Roberts Five will still be able to stay a liberal lower court ruling. But the Ginsburg Four + Roberts will no longer able to stay a conservative lower court ruling. Roberts would have to persuade another Justice, probably Kavanaugh, to cross over. A four-four tie will leave the lower-court ruling in place.

Second, because a gridlocked Supreme Court cannot issue injunctive relief, the lower courts very well may have the final say on matters. In the election law context, most of the swing states are in circuits that President Trump “flipped.” For example Ohio and Michigan are in the Sixth Circuit. Pennsylvania is in the Third Circuit. Wisconsin is in the Seventh Circuit. Iowa and Minnesota are in the Eighth Circuit, which was already flipped. Georgia and Florida are in the Eleventh Circuit. There are a handful of potential swing states in the Ninth Circuit (Arizona, and maybe Nevada). Trump has not flipped the Ninth Circuit, but he has made an impact on panel composition. And with the unique en banc process, the panel decision may stay.

Third, a number of the judges on the Circuit Courts are on the short list. No doubt we will see motions for them to recuse from any election law case. The argument would go that a circuit judge may be biased to vote for Trump so he or she will be elevated. Though, the fact that Trump will make the nomination ASAP will probably moot those claims.

Fourth, the state courts are not “flipped.” Can you imagine if the U.S. Supreme Court splits 4-4, and allows a state Supreme Court resolve the election? That Court could be a conservative Court (Florida or Wisconsin) or liberal court (Pennsylvania), or a combination of several courts. That would be a classic John Roberts move. Decide nothing.

Fifth, the Supreme Court term begins on the first Monday in October. The Court will be short-handed at least till January, and maybe longer. Key cases, such as the ACA appeal, will now be reduced to five votes. Roberts will need at least one of the conservatives to break ranks to form a majority.

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I submitted this statement to Politico Magazine. It will probably run later tonight, or perhaps tomorrow, with some edits.

On September 17, we marked the 233rd anniversary of the signing of the Constitution. Tonight, on September 18, we mourn the passing of a constitutional giant. Throughout her remarkable career, Justice Ruth Bader Ginsburg left an indelible mark on how our Constitution is understood. As an attorney, she litigated the landmark gender equality cases. Her strategy was simple but momentous: make the all-male Supreme Court understand why the government should not discriminate against people bcause of their sex. As a Supreme Court Justice, she eloquently and persuasively articulated her constitutional vision for nearly three decades. As a colleague she modeled civility, even with her jurisprudential foes. It is well known that she became dear friends with Justice Scalia. And as a pop icon, she inspired a generation of young women to aspire for greatness. May her memory be a blessing. The only consolation for this sad moment is that Justice Ginsburg can now be reunited with her beloved husband, Martin Ginsburg. I hope she can soon enjoy a performance of The Marriage of Figaro at the big opera house in the sky–with her old pal Justice Scalia humming along.

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Justice Ruth Bader Ginsburg has died, the Supreme Court announced on Friday night.

Ginsburg, who was 87 years old and had battled cancer on and off since 1999, died surrounded by her family at her home in Washington, D.C., the Court said in a statement. Ginsburg served on the Court for more than 27 years after her 1993 appointment by President Bill Clinton. At the time, she was only the second woman in U.S. history to be named to the country’s highest court.

“Our nation has lost a jurist of historic stature,” Chief Justice John Roberts said in a statement.

Ginsburg rose to prominence during the women’s rights movement of the 1970s while working as an attorney for the American Civil Liberties Union (ACLU). She was appointed to the U.S. Court of Appeals for the District of Columbia by President Jimmy Carter in 1980.

During her time on the Supreme Court, Ginsburg was known as a liberal firebrand and a feminist icon—and even, in the final years of her life, a meme.

Her death leaves a vacancy on the nine-judge bench less than two months before a presidential election, and seems almost certain to set off a major political fight. President Donald Trump has already appointed two justices to the Supreme Court during his first term—Neil Gorsuch and Brett Kavanaugh—and may now have the opportunity to appoint a third if the Republican-controlled Senate agrees to move the nomination quickly.

Just days before Ginsburg’s death, NPR reports that the justice told her granddaughter that “my most fervent wish is that I will not be replaced until a new president is installed.”

When Justice Antonin Scalia died in the summer of 2016, however, Senate Majority Leader Mitch McConnell (R–Ky.) infamously refused to consider the confirmation of a replacement until after that fall’s presidential election. All eyes will now be upon McConnell to see how he handles this new vacancy.

Initial reports indicate that Trump may name a nominee in the near future, but Republicans would need significant support in the Senate for a confirmation to occur. Already, that seems unlikely—and that’s probably for the best.

Multiple sources close to President Trump with direct knowledge tell ABC News he is expected  put forth a nominee to fill Ruth Bader Ginsburg’s seat in the coming days via me & @KFaulders

— John Santucci (@Santucci) September 19, 2020

NEW: Lisa Murkowski (R-AK) announces she will NOT vote to replace RBG on SCOTUS until after Election Day. "Fair is fair," she says.

— Brian Tyler Cohen (@briantylercohen) September 18, 2020

It is perhaps poetic that Ginsburg and Scalia are linked in that way, through their deaths, since they were also close friends in life despite holding deeply diverging views about politics and the law. At a time when America is deeply in need of a reminder that political disagreements need not transcend basic civility or mutual respect, their example should remain.

For more about Ginsburg’s career and legacy, read Reason‘s Damon Root on “The Case of the Notorious RBG.”

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