• Show Notes
  • Transcript

Related Content: Listen to the bonus content for this episode here

On this week’s episode of Stay Tuned, “RBG & The Mountains She Moved,” Preet answers listener questions about DOJ’s recent designation of “anarchist” cities, Attorney General Barr’s diminution of line prosecutors, and whether Supreme Court justices will recuse themselves from the expected presidential election litigation. 

Then, Melissa Murray, NYU Professor of Law & Faculty Director of the Birnbaum Women’s Leadership Network, joins Preet for a conversation about the legacy of late Supreme Court Justice Ruth Bader Ginsburg, from her zealous advocacy in the 1970s, to her influential  dissents from the bench, to the threats that her legacy faces in a Court where conservative justices hold the supermajority. 

To listen to Stay Tuned bonus material, try the CAFE Insider membership free for two weeks and get access to the full archive of exclusive content, including the CAFE Insider podcast co-hosted by Preet and Anne Milgram. 

Sign up to receive the CAFE Brief, a weekly newsletter featuring analysis by Elie Honig, a weekly roundup of politically charged legal news, and historical lookbacks that help inform our current political challenges.

If you don’t already receive CAFE emails, sign up to receive an invitation to the Stay Tuned Live cocktail hour featuring all CAFE hosts on Thursday, October 1, 2020 at 6:30PM ET: www.cafe.com/preet 

As always, tweet your questions to @PreetBharara with hashtag #askpreet, email us at [email protected], or call 669-247-7338 to leave a voicemail.

Stay Tuned with Preet is produced by CAFE Studios. 

Executive Producer: Tamara Sepper; Senior Editorial Producer: Adam Waller; Senior Audio Producer: David Tatasciore; Audio Producer: Matthew Billy; Editorial Producers: Noa Azulai, Sam Ozer-Staton, David Kurlander, Jake Kaplan.

Q&A:

  • DOJ Statement on the designation of “anarchist jurisdictions”, 9/21/2020
  • President Trump’s memorandum threatening to withhold federal funding from “anarchist” cities, 9/2/2020
  • Kristine Phillips, “DOJ names New York City, Portland, Seattle ‘anarchist jurisdictions’ that could lose federal funding,” USA Today, 9/21/2020
  • “New York City 1 of 3 cities deemed by DOJ as ‘anarchist jurisdiction’,” ABC Eyewitness News, 9/21/2020
  • Matt Tinoco, “Here’s Why Donald Trump Can’t Defund “Out-of-Control” California,” Mother Jones, 2/9/2017
  • Quint Forgey, “Barr creates firestorm with comments that appear to boost Trump’s reelection campaign,” Politico, 9/17/20
  • “Recent Times in Which a Justice Failed to Recuse Despite a Conflict of Interests,” Fix the Court, 12/2/2019
  • Debra Cassens Weiss, “Supreme Court justices recused themselves 180 times in most recent term,” ABA Journal, 7/12/2016
  • Bill Mears, “Scalia won’t recuse himself from Cheney case,” CNN, 5/6/2004
  • Title 28 of the United States Code, Section 455
  • Stephen Wermiel, “Justice Kagan’s recusals,” SCOTUS Blog, 10/9/2012

THE INTERVIEW: 

GINSBURG’S PASSING 

  • Alicia Victoria Lozano, “Ruth Bader Ginsburg’s dying wish: Not to have Donald Trump choose replacement,” NBC News, 9/18/2020
  • Sam Gringlas, “’Fill That Seat’ Chants Erupt At Trump Rally, A Day After Ginsburg’s Death,” NPR, 9/19/2020
  • President Obama, “Remarks by the President on the Passing of the U.S. Supreme Court Justice Antonin Scalia,” WhiteHouse.gov, 2/13/2016

DISSENTS

  • Justice Harlan’s Dissent, Plessy v. Ferguson, 163 U.S. 537 (1896), John Harlan Dissent, GMU School of Law, 1896
  • Justice Ginsburg’s Dissent, Lily Ledbetter, Petitioner v. The Goodyear Tire & Rubber Company, 5/29/2007
  • Justice Ginsburg’s Dissent, Shelby County v. Holder, 6/27/2013
  • S.181 – Lilly Ledbetter Fair Pay Act of 2009, Congress.gov, 1/29/2009
  • Jeffrey Toobin, “Will Ginsburg’s Ledbetter Play Work Twice?” The New Yorker, 6/24/2013
  • Richard L. Hasen, “Can Congress Salvage RBG’s Voting Rights Legacy?,” Slate, 9/21/2020
  • “Roberts: ‘My job is to call balls and strikes and not to pitch or bat,’” CNN, 9/12/2005

GINSBURG, THE LITIGATOR

  • Frontiero v. Richardson, Oyez, 1/17/1973
  • “RBG’s early days in Sweden shaped her fight for women’s equality,” The World, 9/21/2020
  • Stephanie Buck, “The On the Basis of Sex Story Wasn’t the Only Time Ruth Bader Ginsburg Used Cases About Men to Argue for Women’s Equality,” TIME, 12/24/2018
  • “Intermediate Scrutiny,” Legal Information Institute
  • Adam Liptak, “Supreme Court Ruling Delivers a Sharp Blow to Labor Unions,” New York Times, 6/27/2018

COKER V. GEORGIA

  • Melissa Murray, “Inequality’s Frontiers,” Yale Law Journal Online, 2013
  • “Justice Ruth Bader Ginsburg – Inaugural Gruber Distinguished Lecture in Women’s Rights,” Vimeo, 10/19/2012
  • Melissa Murray, Twitter Thread on Inaugural Gruber Lecture, Twitter, 9/19/2020
  • Jennifer Schuessler, “Amid the Outpouring for Ginsburg, a Hint of Backlash,” New York Times, 9/21/20

ROE V. WADE

  • Planned Parenthood of Southeastern Pennsylvania v. Casey, Oyez, 6/29/1992
  • June Medical Services LLC v. Russo, Oyez, 3/4/2020
  • Ramos v. Louisiana, Oyez, 4/20/2020
  • Melissa Murray, “The Supreme Court’s abortion decision seems pulled from the ‘Casey’ playbook,” Washington Post, 6/29/2020
  • Mary Ziegler, “What Clarence Thomas gets wrong about the ties between abortion and eugenics,” Washington Post, 5/30/2019
  • Neal Katyal, “Trump v. Hawaii: How the Supreme Court Simultaneously Overturned and Revived Korematsu,” Yale Law Journal Forum, 1/30/2019
  • Amy Morona, “What are trigger laws? Examining states’ preemptive legislative bans on abortion,” Washington Week, 3/26/2019
  • Dan Mangan, “Trump: I’ll appoint Supreme Court justices to overturn Roe v. Wade abortion case,” CNBC, 10/19/2016

AFFORDABLE CARE ACT

  • MaryBeth Musumeci, “Explaining California v. Texas: A Guide to the Case Challenging the ACA,” KFF, 9/1/2020
  • Sarah Kliff and Margot Sanger-Katz, “Without Ginsburg, Supreme Court Could Rule Three Ways on Obamacare,” New York Times, 9/21/2020
  • Adam Liptak, “Supreme Court Upholds Health Care Law, 5-4, in Victory for Obama,” New York Times, 6/28/2012

MARRIAGE EQUALITY

  • Obergefell v. Hodges, Oyez, 6/26/2015
  • Gorsuch Opinion, Pavan v. Smith, Justia, 6/26/2017
  • Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, Oyez, 6/4/2018
  • Adam Liptak, “Supreme Court to Hear Case on Gay Rights and Foster Care,” New York Times, 2/24/2020

CHANGING THE COURT

  • Melissa Murray and Jamal Green, “Could Term Limits Ease Fights Over Supreme Court Nominees?” New York Times, 3/19/2016
  • Amita Kelly, “McConnell: Blocking Supreme Court Nomination ‘About A Principle, Not A Person,’” NPR, 3/16/2016
  • William E. Leuchtenberg, “When Franklin Roosevelt Clashed with the Supreme Court – and Lost,” Smithsonian Magazine, 5/2005
  • Professor Hadley P. Arkes on the Four Horsemen, C-SPAN, 10/1/2006

TRUMP’S NOMINEE

  • Melissa Murray Tweet on the Nominee, Twitter, 9/19/2020
  • Billy Corriher, “Clarence Thomas: The Anti-Thurgood Marshall,” American Progress, 7/9/2013

Preet Bharara:

From CAFE, welcome to Stay Tuned. I’m Preet Bharara.

Melissa Murray:

I think women feel quite acutely that as you age, you really are kind of put on the shelf in American society. And we’re a society that really values youth. And here’s this woman who defied odds in almost every aspect of her career right up until the end, where in her eighties, a time when women are literally on the disdain of society, she becomes a cultural icon. I mean, it’s just absolutely unimaginable when you think about it.

Preet Bharara:

That’s Melissa Murray. She’s an NYU professor of law and faculty director of the Birnbaum Women’s Leadership Network. Murray clerked for then judge Sonia Sotomayor when the justice served in the court of appeals for the Second Circuit. Her scholarship has been recognized with many awards, including the Association of American Law Schools’ Derrick A. Bell Award for her extraordinary contribution to the study of law and social justice.

Preet Bharara:

Murray joins me today to talk about the glorious and notorious Ruth Bader Ginsburg whose death last Friday sent shock waves through the nation. Today we reflect on the life and legacy of one of the most influential supreme court justices we’ve ever known and the future of the highest court in the land. That’s coming up, stay tuned. Let’s get to your questions.

Ron:

Hi, Preet. My name is Ron. I’m calling you from Sofia, Bulgaria, but I’m an American originally from Chicago. But my question is with the supreme court with a number of Trump appointees, if there’s a decision that needs to be made about the election, do those justices need to recuse themselves? Love the show. Keep up the good work, talk to you later. Bye.

Preet Bharara:

Thanks Ron. It’s always great to hear from our fans in Bulgaria. So it’s a great question and one that a lot of people are going to be asking. The quick answer to your question is they do not need to. Justices aren’t required to recuse themselves from cases under any circumstances, they make the decision as to whether or not it is appropriate.

Preet Bharara:

Obviously the rules of recusal are covered by law. In particular, there’s a statute that addresses the question that you’re asking, and it states kind of broadly the following. A federal judge shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. And also it says a judge should be disqualified where he has a personal bias or prejudice concerning a party for personal knowledge of disputed evidentiary facts concerning the proceeding.

Preet Bharara:

Now, in ordinary cases sometimes a party can move to disqualify a judge. That judge makes a ruling and it can be appealed upwards and sometimes judges get disqualified. I believe that motion was made with respect to the judge in the Michael Flynn case. So in that case, the lawyers for Michael Flynn wanted Judge Sullivan to disqualify himself, or asked the appeals court to disqualify him, they declined to do so.

Preet Bharara:

When it comes to the Supreme court, there’s nowhere to appeal that even if a party wants to disqualify a supreme court justice. And generally on matters like this, it’s up to the justice. So there have been a lot of instances where justices have recused themselves, which makes sense and some cases where they haven’t and received criticism.

Preet Bharara:

Most commonly justices recuse themselves if they have had some hand in the underlying case because of a previous job, Elena Kagan, for example, recused herself from a number of cases that she had some connection with because she was the solicitor general of the United States before. Same was true with Thurgood Marshall, he recused himself on a regular basis for the same reason. He had been a solicitor general under Lyndon Johnson.

Preet Bharara:

In a case that people are talking about a lot this week, the Virginia Military Institute, sex discrimination case whose majority opinion was written by Ruth Bader Ginsburg in that case, it was seven to one. Only eight justices heard the case because Clarence Thomas who was also on the supreme court at the time recused himself because his son was at that very moment enrolled at VMI.

Preet Bharara:

Justices may also decide on their own to recuse themselves because they have a financial stake in one of the parties, or they have a family tie or some other reason that could give the appearance of impropriety or bias. Now, sometimes justices refuse to recuse themselves and they come under fire. That was true of the late Antonin Scalia who was criticized in 2004 when he refused to recuse himself from a case involving vice-president Dick Cheney, with whom he had recently hunted and dined.

Preet Bharara:

There are other cases when justices have not recused themselves even though they own some stock in one of the parties to a case. To give you an example of how common recusal is though, in 2016 supreme court justices recused themselves around 180 times during one term. Going back to your question on what will happen with respect to a case on which the election may turn, it’s my prediction that justices will not recuse themselves no matter what the appearance.

Preet Bharara:

This question comes from Twitter user, Elcochen, who writes, will you be explaining this whole anarchist city deal on your podcast? #AskPreet. Well, I’m glad you asked that question because it’s been head-scratching for a lot of people. To be clear for folks, you’re referring to something that the president did through the Department of Justice in the last few days.

Preet Bharara:

This past Monday DOJ released a statement that identified three cities, New York city, Portland, and Seattle as “jurisdictions permitting violence and destruction of property” and also call them anarchist jurisdictions. And the suggestion is that those cities could lose federal funding after there had been protests against racism and police brutality in major cities and an uptick in some places in violence.

Preet Bharara:

As an initial matter I should tell you that the designation, as sort of compelling as it sounds, anarchist city has no meaning in any law that I’m aware of. It’s just a label, a slogan, a name calling exercise taken on by the Department of Justice in the style of Donald Trump, as he does with all of his political rivals and enemies. So it’s kind of a silly designation and also a meaningless designation.

Preet Bharara:

Second thing is to the extent that the federal government wants to defund, and that’s an interesting and controversial word in many contexts these days, to the extent the federal government wants to defund local jurisdictions, those cities in particular, it’s kind of odd when the whole point is that there’s rising violence, and those cities that it’s claimed should be doing more with respect to that violence.

Preet Bharara:

In fact, the executive order that preceded this recent anarchist jurisdiction announcement said that he was threatening to withhold federal funding from cities where the administration said state and local officials have cut police department funding. So it’s unclear to me why you meet a cut with a further cut. So as a matter of common sense and logic, it doesn’t make a lot of sense.

Preet Bharara:

It is also the case that generally speaking, the federal government and Republicans who believe in federalism in particular, don’t micromanage local police departments. So that’s another point. Here’s the explanation that’s given in this week’s announcement. “When state and local leaders impede their own law enforcement officers and agencies from doing their jobs, it endangers innocent citizens who deserve to be protected, including those who are trying to peacefully assemble and protest.

Preet Bharara:

We cannot allow federal tax dollars to be wasted when the safety of the citizenry hangs in the balance.” That’s a statement by William Barr. So what does this mean? To my mind, it’s a political ploy in advance of the election that is attempting to be consistent with the president’s declaration that he is the law and order president although in so many contexts I don’t think he understands what law or order actually mean, and certainly not together.

Preet Bharara:

The only effect it will have is if it is used as a basis to actually go through with this threat of taking money away from New York city, Portland and Seattle. And with respect to that, you can ask any legal expert around, a president can’t just do that arbitrarily and capriciously on his own. The power to the purse belongs to the Congress.

Preet Bharara:

And although there are circumstances in which federal funding can be reasonably tied to certain relevant conditions and reasonable conditions, you can’t coerce local governments, especially in a political way to do the federal government’s bidding. We have federalism in this country, which Republicans used to understand. Numerous supreme court cases have held that you can’t be coercive when conditioning funding from the federal government to local governments.

Preet Bharara:

As John Roberts once wrote in the supreme court opinion on this issue, you can’t put a gun to the head of the municipality. As a practical matter too, it’s not the case that there’s just one program and one stream of money that comes to New York city, for example, from the federal government. There’s an array and an assortment of funding streams and different kinds of grants and programs.

Preet Bharara:

And in order to accomplish this obnoxious defunding that the president wants to do, he would have to direct the particular streams that are great in number be stopped. And even if the administration tries to stop the funding of any of these streams to these cities, the mayors of all three places have said they will file legal action. And as far as I can tell, the cities will probably prevail.

Preet Bharara:

This question comes in a tweet from Twitter user [Hoffbz 00:08:38], can you comment on Bill Barr demeaning lying prosecutors in public? #AskPreet. So I’ve talked about this a little bit in some other places and on television, but I don’t get tired of talking about it because it’s one of the most obnoxious and counterproductive things that the attorney general has said, and he said a lot of things that fall into that category.

Preet Bharara:

In a speech he gave last week, he tried to infantilize federal prosecutors within the justice department. He said, “Name one successful organization where the lowest level employees decisions are deemed sacrosanct. There aren’t any. Letting the most junior members set the agenda might be a good philosophy for a Montessori preschool, but it’s no way to run a federal agency.”

Preet Bharara:

Why on earth a leader of any agency or any organization, much less the Department of Justice, would feel the need to criticize in that childish way, the backbone of the department, the people who do the work, the people who are the public servants, the people who sacrifice a lot to keep the country safe and to enforce the laws? Why you would do that as a simple leadership matter is beyond me. And why you would make such a straw man argument is also beyond me.

Preet Bharara:

No one has suggested anywhere that the lowest level employees of the Department of Justice or any other agency are supposed to set the agenda for the entire department, that doesn’t happen. It doesn’t happen at the Department of Justice, it doesn’t happen at the Department of Transportation. It’s a complete distraction straw man argument, and by an attorney general who seems to be irritated and irritable because of the criticism that he gets.

Preet Bharara:

The criticism of Bill Barr is not that the lowest level people in the Department of Justice should be setting the agenda, the criticism is that the attorney general should not willy-nilly be interfering only in those cases that affect associates of the president like Roger Stone and Michael Flynn.

Preet Bharara:

In both of those cases, by the way, it wasn’t the junior-most folks who were making the decisions or setting the agenda, they were doing it in coordination with supervisors and their supervisors and the supervisors of the supervisors, which is true in the DC US attorney’s office. I sometimes get the question, what do you think this does to morale in the department? I’ve talked to a lot of folks and they’re not happy and they’re distressed about it.

Preet Bharara:

But contrary to Barr’s assertion that they are like preschoolers, they’re actually adults and they’re very mature and they’re very professional. And although they don’t like it and they think it’s dumb and they think it’s silly and they think it’s counterproductive, they keep their heads down and they do their work like they always have. But those comments by Bill Barr, as both a leader and a thinker are ridiculous.

Preet Bharara:

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Preet Bharara:

My guest today is Melissa Murray. She’s a law professor at NYU and a colleague of mine, where she focuses on family law, constitutional law and reproductive justice. Last Friday, we suffered a great loss. News of the passing of Justice Ruth Bader Ginsburg gripped the nation as thousands gathered outside the supreme court to pay homage to her incredible life dedicated to fighting injustice.

Preet Bharara:

Today Professor Murray and I honor the Notorious RBG and the mountain she moved in her legal career. We also look ahead to the future of the supreme court. Melissa Murray, welcome to the show.

Melissa Murray:

Thanks for having me.

Preet Bharara:

How are you? I always begin the interview with how are you, and it’s a more complicated question than it used to be.

Melissa Murray:

Well, these are difficult times I think for everyone. I think folks with kids at home doing remote school are feeling it a little bit more acutely. I know I am. I am a pretty good law professor, I think I’m a pretty struggly fourth grade teacher, but I’m getting by.

Preet Bharara:

It’s an arduous and difficult thing for all of us. And just when you thought it couldn’t get worse, and just when you thought there couldn’t be more bad news, the news broke on Friday night about the passing of Ruth Bader Ginsburg. Where were you when you learned the news?

Melissa Murray:

So I was out running in our neighborhood and just started getting a flurry of texts, which interrupt the music that you’re listening to if you’re running. And so I stopped and I saw this and it was just immediately devastating. And I turned and came home right away knowing that there would just be lots of media attention and lots of requests to say something about Justice Ginsburg and her legacy.

Preet Bharara:

Were you surprised? I mean, the interesting thing, our colleague and friend, Anne and I were discussing the other day that came as a shock even though everyone knew that she had deteriorating health and she had this fight with cancer and she was 87 years old. Did it come as a shock to you?

Melissa Murray:

So, I mean, that’s sort of the thing. I mean, we were all anticipating it, especially after July when the court released that statement about the recurrence of her cancer. And the way the statement was phrased and they talked about the lesions on her liver, it definitely seemed as though it was metastasized cancer. So obviously in a situation like that, it seems like it’s only a matter of time.

Melissa Murray:

But this was a woman who had beat that cancer so many times and was such a survivor that surely she would hold on until November 3rd. I mean, she certainly understood the stakes. It was clear in her dying declaration to her granddaughter that she understood the stakes. And we all, I think, just imagine that she would hold on if she could.

Preet Bharara:

So a number of people have made the following observation to me. Obviously everyone imagined that they would be upset and sad upon the passing of Ruth Bader Ginsburg. But multiple people have said to me, and I include myself in this, they reacted more strongly than they expected that they would, it was more devastating than they expected. Did you have that feeling and do you know why that might be?

Melissa Murray:

Well, certainly I think everyone felt devastated. I mean, it’s a loss of an enormous figure in American legal culture and certainly someone whose legacy on the law is just enormous. But I think given the times, it feels the devastation is amplified just because of the moment we are living in. We are in the middle of an election.

Melissa Murray:

The last time we had something like this and it wasn’t exactly like this, but sort of like this, there was such a rush to fill the seat, and the consequences of doing so really were profound. That really solidified a five to four conservative majority, of bare majority on the court. And I think everyone understands that the passing of Justice Ginsburg at a time when the Republicans control both the presidency and the Senate means that bare majority is now going to become super majority.

Preet Bharara:

And it’s interesting with the supreme court justice, anytime a supreme court justice passes while in office, there doesn’t seem to be enough time to honor their legacy and pause on what their contributions have been. Because immediately so much is at stake, attention turns to who the replacement will be. Do you think the supreme court justices are given a little bit of short shrift because of that?

Melissa Murray:

I think it depends on the moment. I mean, I’m thinking back to 2016 when Justice Scalia passed away in February. It was a full month later that President Obama named Merrick Garland as his replacement. And I think in that period of time there was some excavation of Justice Scalia’s legacy on his contributions to the conservative legal movement. All of those things were hashed out.

Melissa Murray:

Here, I feel like Justice Ginsburg barely got 24 hours before we were talking about who would replace her and that there were rallies across the country where President Trump would speak and the response would be fill that seat, fill that seat. So there’s a way in which I think we gave her short shrift, and maybe we give all justices who die in office short shrift.

Melissa Murray:

But it did seem at least that in this particular case, there was a kind of callous political rhetoric that was fused around it. And again, I think it’s because the election really is upon us. We are actually in the throws of the election right now as people are early voting.

Preet Bharara:

I think early voting began in some places on that day, on the day she passed.

Melissa Murray:

Yes.

Preet Bharara:

Why do you think Justice Ginsburg meant so much to young women?

Melissa Murray:

I mean, I can just speak to my own experience, and I am obviously not a young woman, but my joints say otherwise. But she had this really fantastic career as a woman’s rights litigator even before she came to the court. And if she had done nothing more but have that career as a litigator, that would have been a legacy of enormous consequence.

Melissa Murray:

But then of course she did go onto the court as the second woman to be a justice. And she had a really fantastic career, not necessarily in the majority all of the time. I think her most notable majority opinion was her opinion in the United States versus Virginia. But as the court moved to the right, she really became a kind of liberal lion anchoring that liberal block on the court.

Melissa Murray:

And her dissents really were fierce and fabulous. They of course spawned this meme, the Notorious RBG and I think that also helped route her in popular culture and gave her a new audience with young women. And I know it tickled her to know that so many women of this next generation were reading her work and admiring her. But I think there’s also this idea that I think women feel quite acutely that as you age, you really are kind of put on the shelf in American society.

Melissa Murray:

And we’re a society that really values youth. And here’s this woman who defied odds in almost every aspect of her career, right up until the end where in her eighties, a time when women are literally on the disdain of society, she becomes a cultural icon. I mean, it’s just absolutely unimaginable when you think about it.

Preet Bharara:

I think it was probably mostly because of her TikTok, right?

Melissa Murray:

I don’t think she knew what TikTok was.

Preet Bharara:

That’s a joke. I don’t think she had a… I barely know what TikTok is. I see all the TikTok videos when they get posted to Twitter like the old guy I am.

Melissa Murray:

Twitter is definitely a forty-something social media platform.

Preet Bharara:

Can you explain something to people? Most of our listeners are not lawyers, but they’re very thoughtful citizens. And everyone keeps talking about the “fiery dissents” of Ruth Bader Ginsburg, explain to folks why dissents can be important and why they’re not just cranky memos of no consequence because by definition, if you’re writing the dissent, your side lost. Why are they important? And why were Ginsburg’s important?

Melissa Murray:

So the dissents are often again the losing side of any legal battle. But again, there are moments and shifts in the sort of landscape of a lot… And things can change and there can be incremental shifts, there can be lurching shifts. And dissents may actually presage one of those kinds of movements in the law.

Melissa Murray:

So if you think about it, Brown versus Board of Education is in 1954, but earlier than that, in the 1890s, when the court heard Plessy versus Ferguson, which is the case that cemented separate but equal, there was a dissent from justice John Harlan that said that this case, the decisions, separate but equal was absolutely wrong and had no place in the constitution.

Melissa Murray:

And it wasn’t until 1954 in Brown. But when Brown was decided, they invoked that language, the language of that Plessy dissent in striking down Jim Crow and separate but equal. So these dissents can actually point the way to a shift in the law, and certainly Justice Ginsburg thought about them in that way.

Melissa Murray:

But they can also have, I think, another kind of important repercussion in that they are a way for the dissenting members of the court to speak to the people and to other institutions. And I think that’s critically important here. They are, I think, what Lani Guinier and Gerald Torres might call a kind of demosprudence, like something for the people, not necessarily for the court.

Melissa Murray:

And Ginsburg really, I think, made the most of her dissents in that respect. So in this case about equal pay, the Lilly Ledbetter case, she was very much in the minority. Lilly Ledbetter was a worker at a Goodyear plant, I believe in Alabama. And she learned very late in her career that throughout her career, she had been underpaid relative to her male colleagues.

Melissa Murray:

And she tried to sue, but her claim was time-barred. And that was the issue before the court, whether she could bring a claim or whether she was out of time because the statute of limitations had elapsed. The court in an opinion written by Justice Alito said she was time-bar, there’s nothing they could do about it.

Melissa Murray:

And Justice Ginsburg wrote this fiery dissent, which she read from the bench in its entirety, where she not only chastised her colleagues for not understanding how discrimination worked on the ground and specifically how gender discrimination worked. And this was really important because at the time she was the lone woman on the court.

Melissa Murray:

This was during that period between 2005 and 2009, between when Justice O’Connor had retired and before Justice Sotomayor came to the court. She was the only woman. And she basically rebuked her male colleagues for not understanding how easy it is for women to be underpaid and never know it because nobody talks about salary, it’s just not done. But more than just chastising her colleagues, she spoke to Congress and she made it clear, “This court will offer working Americans no quarter.”

Ruth Bader Ginsburg:

Today’s decision councils sue early on when it is uncertain whether discrimination accounts for the pay disparity you are beginning to experience. Indeed, initially you may not know that men are receiving more for substantially similar work. Of course, you are likely to lose such a less than fully baked case. If you sue only when the pay disparity becomes steady and large enough to enable you to amount a winnable case, you will be cut off at the court’s threshold for suing too late.

Melissa Murray:

The ball is really in Congress’s court and Congress heard her and they passed the Lilly Ledbetter Fair Pay Act and then President Obama signed it into law in 2009 as his first official legislative act as president.

Preet Bharara:

In some sense, are dissents sometimes also directed at the majority justices so that even though in that case, the dissenter has lost by definition that it might moderate or regulate the manner of thinking of the majority justices in future cases?

Melissa Murray:

Certainly. Or even in just that particular case. So the strength of a dissent may prompt the justices in the majority to tamper on or carve back a little bit some of their position in the majority opinion. So they can be incredibly influential and they can also be a way of calling the majority out not just to other colleagues, but again, to the people.

Melissa Murray:

So if you think about her 2013 dissent in Shelby County versus Holder, she was really speaking and bringing it to the chief justice. Chief Justice Roberts wrote that opinion dismantling the pre-clearance provisions of the Voting Rights Act. And he argued that these pre-clearance provisions were no longer needed because in the United States, and especially in the South, there had been record numbers of minorities going to the polls and successfully casting their ballots.

Melissa Murray:

And for that reason, he said, “We don’t need this anymore. We don’t need these vestiges of a segregated pass. We no longer live in that world.” And she wrote this really pointed dissent in which she said to the chief justice and to the world, this whole logic that you’ve offered in this majority opinion is essentially like throwing out your umbrella in a rainstorm because you are not getting wet. And it was a devastating critique. And it’s the one that spawned that Notorious RBG meme.

Ruth Bader Ginsburg:

A great man who led the march from Selma to Montgomery, and there called for the passage of the Voting Rights Act foresaw progress, even in Alabama. “The arc of the moral universe is long,” he said, “but it bends toward justice.” If there is a steadfast commitment to see the task through to completion, that commitment has been disserved by today’s decision.

Preet Bharara:

Right. And it’s very quotable for ordinary people who may not be scholars of the constitution, which I guess-

Melissa Murray:

Everyone understands what that means, to throw out your umbrella in a rainstorm.

Preet Bharara:

There are discussions of which justices over time are the best writers. And sometimes the question is writing for whom? As anyone who’s gone to law school knows, there are judicial opinions that are very good and smart but that are not really comprehensible to lay people. And then there are those that are comprehensible to everyone who’s literate, and she tended to write a lot of those.

Melissa Murray:

I think that’s exactly right. She was very precise about her language like an exacting editor, I think her clerks make that clear. And in the latter part of her career on the court, there were oftentimes when she may have dissented alone or in tandem with Justice Sotomayor.

Melissa Murray:

So they didn’t always get the entire liberal wing of the court to join them. But there were things I think she felt had to be said for the record, for the people and to make sure that the people understood that at least some quarter of the court heard them and understood what their issues and the stakes of this particular case were for that.

Preet Bharara:

I want to talk about some features of Justice Ginsburg’s career strategy, philosophy of litigation, and also jurisprudence. And so one thing that’s been said about her is that she’s very strategic, which is interesting because it’s not necessarily the thing that you hear about a justice who’s supposed to be, in the words of John Roberts, calling balls and strikes. Can you speak a little bit to this quality of strategic vision she had both as a litigator and also as a justice?

Melissa Murray:

Sure. But before I say anything about Justice Ginsburg and her strategery, if you will, that Robert’s quote is so vexing for so many reasons. It is-

Preet Bharara:

I said it slightly ironically, I was trying to be ironical in my voice.

Melissa Murray:

It just comes up over and over again like judges are supposed to call balls and strikes. What the quote fails to capture is that it’s the umpire who actually delineates the strike zone and there is judgment in that. So this idea that being a judge or a justice is this macro shift F5, affirm shift F6, reject or reverse, that’s just not how it works. And he knows that so let’s just put that aside.

Preet Bharara:

But it’s a very effective thing to say to a confirmation hearing.

Melissa Murray:

Yes. So I mean, there’s another one who understands what it means to speak to the people and to speak to certain audiences. But Justice Ginsburg as a litigator was incredibly savvy. And one of the things that I think people don’t recognize was that when she graduated from law school at the top of her class at Columbia, she could not find a job.

Melissa Murray:

She eventually received a clerkship on the Southern District of New York, but only after one of her professors threatened the judge with never sending him a clerk again if he refused to at least give her a chance to work for him. When she ended that clerkship, again, employment prospects were pretty slim pickings. So she went to Sweden where she was given the opportunity to do a project on Swedish civil procedure.

Melissa Murray:

And in order to do that, she became fluent in Swedish and she really immersed herself in the procedural aspects of the Swedish civil courts. And while she was there in Sweden, it was at a time when Sweden was really undergoing a kind of revolution in its understanding of gender and gender roles. And they had introduced certain legislative provisions that gave women certain benefits for childbearing and whatnot.

Melissa Murray:

And the hope was that they could democratize caregiving within the family. But the problem of course, is that even as they had given these benefits to women, they hadn’t done it for men and so women continued to bear the burden of caregiving and family responsibilities in Sweden. And so they began to think about how that might be shared more equally.

Melissa Murray:

And they started doing more legislative interventions that would bring men into the work of the family, providing care, doing the kind of family responsibilities that women had previously done. And she was there observing all of this. And it really informed her thinking about the law when she came back to the United States.

Melissa Murray:

So when she joined the ACLU Women’s Rights Project, one of the things that she began doing as she was litigating these cases to dismantle the sex-based classifications that were everywhere in American law, was she began to use male plaintiffs as opposed to women plaintiffs. And the idea behind this I thought was really extraordinary.

Melissa Murray:

Some have said that she wanted to give the male justices figures with whom they could identify, but these men were not men that the justices could identify. The justices were not performing childcare or raising children by themselves as some of her plaintiffs were. They weren’t caring for elderly parents on their own.

Melissa Murray:

So these were not men that the justices could really identify with, but she wanted to make the case that the sex-based classifications that clearly burdened women also less obviously burdened men. They locked women into a particular role and did it ostensibly for women’s protection. But more importantly, they solidified these gender roles that posited women as homebound caregivers and men as breadwinners.

Melissa Murray:

And if you were a woman who wanted to be a breadwinner or a man who wanted to provide caregiving in the home, these laws completely shut you out. So they created these stereotypes. They locked people into these particular sex roles, and they really gave them no choice about how they would live their lives within the family.

Melissa Murray:

And it was a really brilliant strategy. Not one that everyone I think immediately understood. I think feminists initially critiqued it as being a kind of formal hollow equality rooted in the needs of men. But I think what she was really trying to do was to sort of disestablish these familial roles and the gender stereotypes that undergirded them and make all of the options available to everyone.

Melissa Murray:

And you saw this come to fruition in that 1996 case United States versus Virginia, her first major opinion for the court in which she struck down the Virginia Military Institute’s policy of denying women admission to the school. It was an all male institution. And she said there are probably lots of women who do not want to attend VMI, do not want any part of its adversative training methods.

Melissa Murray:

But if there’s one woman who wants to do this, then that one woman really needs to have a shot, and Virginia cannot get away with having a separate but equal lady military college on the side, it has to make VMI available to anyone who wants to try.

Preet Bharara:

Another feature, and maybe this is part of her strategic approach to the law, but another feature of her approach was incrementalism. And I’ve been thinking about that a lot since she passed because in our very politically fraught country at this moment, and we had an election coming up, as you said, there are people who want very substantial change in a lot of things, including criminal justice and with respect to climate policy and all sorts of things.

Preet Bharara:

And particularly among young people, there is an urgency about things and people want to change things quickly. And the word incrementalism typically is not associated with quick change. This idea of being incremental, is that something that is necessary only because the law is so static and there’s so much gravitational pull of precedence? I guess speak to this idea of incrementalism that was smart and savvy and strategic as you’ve been saying in a world in which nobody wants to be incremental.

Melissa Murray:

So I think one thing that gets lost in the sort of Notorious RBG popular culture vision of her is that she wasn’t institutionalist, right? I mean, she really believed in institutions. It was why she was a lawyer. She said she was inspired by the work that lawyers did during the Red Scare. She never said, “I was inspired by the protest about the Red Scare,” but about how lawyers could actually make something happen.

Melissa Murray:

And the law is, by its nature, a kind of incremental tool for doing that. It builds on itself over time. Precedent is really important. So it’s not surprising that in her role as a justice and in her thinking about the law, she was more incremental and maybe more incremental than those outside of the court would have liked for her to be, and we are in a particularly profound moment.

Melissa Murray:

I will say for those who are arguing for more lurching change, part of it I think is animated by the fact that the court, as we have seen at least over the last 10 years, even as it professes to be incrementalist in its work and how it does its work, the outcomes actually are more lurching than perhaps we appreciate.

Melissa Murray:

So I’m thinking about the recent cases over public sector unions for example, the case that was the precedent there, Abood was a 1973 case and it was pretty much settled law until the Roberts court came in in I think around 2016 and maybe a little bit before that, 2014, and they began sort of chipping away at it incrementally, but really calling this precedent into question.

Melissa Murray:

And then by 2018, having laid the groundwork in three earlier cases in rapid succession, they just overruled Abood. So there’s a way in which incrementalism can actually mask a lurching shift in the way the law works. No one could have imagined 10 years ago that we would be in the situation that we are in now vis-a-vis public sector unions.

Melissa Murray:

That was something that was done incrementally, but done in rapid fire and quickly moved the court to the right on labor issues. And so there are ways in which I think those calling for more extreme change are responding to the abuses of incrementalism to actually affect these more lurching shifts.

Preet Bharara:

Is there also something to be said for the idea, especially in the law, that relies on precedent and decisions can become binding, that if you move too quickly and you present an issue too soon to a sort of unreceptive, a non receptive court, especially the supreme court that you might wind up with bad law, worse law than you might have otherwise?

Melissa Murray:

Well, I think that’s certainly the case. And I think Justice Ginsburg really understood that during her time as a litigator. When she was litigating these sex discrimination cases before the court, it was in the wake of the civil rights movement and Thurgood Marshall’s efforts to get race read into the constitution in a way that would help the civil rights movement combat racial discrimination.

Melissa Murray:

And at the time when Marshall was litigating, strict scrutiny seemed like the perfect vehicle. The idea that claims based on race should be reviewed more strictly by the court made a lot of sense because there were so many explicitly racial classifications on the book. Like Jim Crow was just replete with explicitly racial classifications.

Melissa Murray:

And as time went on by the 1970s, you began to see perhaps what we might call second generation discrimination claims that where the laws in question were not facially race-based, they were neutral on their face, but they would have disparate impact on particular groups, whether it was African-Americans or women or whatever. And the real question there was could you use strict scrutiny? Could you not use strict scrutiny?

Melissa Murray:

It was also at the same time when the court was beginning to take up challenges to raise conscious remedial efforts like affirmative action. And the question there was would you use strict scrutiny or would you use some lesser standard? Because the use of race was benign in nature and using strict scrutiny would certainly do these affirmative action programs.

Melissa Murray:

And Ginsburg was sort of in that milieu watching this and arguing for a particular standard for women’s rights. And she initially pushed for strict scrutiny. She got very close in 1973’s Frontiero versus Richardson where a plurality of the court said that gender based classifications like race should be reviewed under strict scrutiny.

Melissa Murray:

But in the end, the court ultimately settled on intermediate scrutiny. And I think she was actually okay with that because she saw over time how strict scrutiny could be used against remedial efforts and was not available in claims of disparate impact and so maybe something in the middle might actually be more helpful for issues of gender discrimination. So I think just being able to watch the law unfold, and certainly in the case of civil rights, this was happening over a very short period of time, she was able to maybe modulate her strategy and the strategy for women’s rights over time.

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Preet Bharara:

I want to shift and talk about another case and then we’ll talk about the future that you wrote about. In 2012, you wrote a paper about Ruth Bader Ginsburg‘s advocacy in a particular case. And the question presented in the case from 1977 was essentially, was the death penalty a proportional punishment for the crime of raping an adult woman? And my question to you is why did that interest you? Why were you writing about that? And what was Ginsburg’s view?

Melissa Murray:

So it’s actually a really terrific story that’s rooted in my teaching. At the time, I was writing this or before I was writing it, I was teaching a small section of criminal law at the University of California Berkeley. And there was a note in the criminal law case book about Ruth Bader Ginsburg and this brief in Coker versus Georgia, that was the 1977 case.

Melissa Murray:

And I don’t recall assigning the note to the class, but after class, one of my students, a young man named Cameron came up to me and asked why would Ruth Bader Ginsburg be interested? I don’t even understand how this has anything to do with gender. We’ve been talking about the death penalty and the book presented it in the context of race. How does this have anything to do with what Ginsburg is associated with, which is gender?

Melissa Murray:

And I have to confess, and I confessed to the students, I didn’t know. And I was like, “We should find out.” And so I went back, I began researching it. At the same time I was invited to participate in this event at Yale Law School inaugurating their Gruber Lecture and Justice Ginsburg was to be the inaugural honoree and the whole symposium was sort of centered around her work.

Melissa Murray:

And as I dug into researching this question for Cameron, I learned all about how Justice Ginsburg’s advocacy in this death penalty case was rooted not just in concerns about women, but also concerns about the intersection of race and gender and how it was deployed in the context of the death penalty. And I knew immediately that not only had I found an answer for Cameron, but I found something that I wanted to contribute to this symposium about Justice Ginsburg.

Melissa Murray:

And basically I wrote a paper explaining that one of the critiques that has been lodged against her, especially in recent years, is that her feminism was inattentive to questions of race and wasn’t intersectional enough. And I think if you read this brief, you will clearly see that she understood the intersectional implications of sex discrimination and how race and sex discrimination often worked in tandem with each other.

Melissa Murray:

She argued that the death penalty for rape not only credited this idea that women were the property of their fathers and husbands, but that in actually levying the death penalty, it was more often levied against African-American defendants who were accused of raping white women. It was a way of sort of shoring up a kind of sexual hierarchy in which white women’s purity was really valorized and black men’s sexuality was understood as deeply, deeply threatening.

Melissa Murray:

And just getting a sense of that, you could see that her feminism was not as limited as detractors had claimed that there were glimmers of intersectionality at a time when that wasn’t even part of our vernacular. And so I wrote this piece, presented it at Yale Law School, gave credit to Cameron for inspiring it. And then her Justice Ginsburg’s comments, she wrote me this very lovely note where she thanked me for surfacing these connections between race and gender because that clearly, in her view, had been her intent in writing the brief.

Preet Bharara:

So I want to talk about the future. There’s the immediate future and what Ginsburg’s passing and the departure from the court mean and then there’s sort of the longer term. I kind of want to look at the little bit of the longer term first and we’ll get back to things like the Affordable Care Act in a moment.

Preet Bharara:

So I guess what’s on a lot of people’s minds, obviously this depends a little bit on who the replacement is and if that person gets confirmed, Roe v. Wade and reproductive rights. Are people who say that that ruling and those rights that people have become accustomed to in the United States, they’re really out the window in a short period of time, or is that overstatement?

Melissa Murray:

So I don’t think it is an overstatement. I think it’s worth noting that Roe versus Wade exists as a precedent, but it is pretty much desiccated substantively. It was sort of hobbled in 1992 in Planned Parenthood versus Casey. There was an effort I think in 2016 to kind of put some teeth behind the Casey standard and make courts really interrogate the intentions of legislatures when they passed abortion restrictions.

Melissa Murray:

And just this last term in the June Medical Services case, we saw the chief justice in a nod to stare decisis say that he would vote with the liberal wing to strike down a Louisiana abortion restriction because it was virtually identical to the Texas restriction the court had struck down in 2016. But in his opinion where he purports to follow precedent, he actually guts the precedent that the 2016 case put in place, which was intended to put some teeth around the standard.

Melissa Murray:

He says that we don’t need to do that anymore. So there’s a way in which all of these abortion precedents stand, but they’re kind of a Potemkin village in which there really isn’t anything behind it, a strong wind could overturn this. And more importantly, I think the chief justice’s decision to vote with the liberal wing just this past June likely had something to do with not just the fact that the court had recently heard a challenge to a similar law, but that the court was very precariously balanced at 5-4, five conservatives to four liberals.

Melissa Murray:

Going forward, the liberal wing has lost one person, so it’s now at three. And the conservatives will surely pick up another seat, giving them a six to three super majority. It’s unclear with that kind of balance on the court or lack of balance, so to speak that we’re going to see the kind of compromise efforts from someone like Chief Justice Roberts that we’ve seen over the last couple of years.

Melissa Murray:

I mean, it’s unclear whether Chief Justice Roberts will even be the swing justice in a position to make those kinds of overtures to the other side going forward. So this is going to become a solidly conservative court. It will have three Trump appointees, President Trump famously vowed to appoint nominees who would overturn Roe versus Wade. And I think in this respect, he has been true to his word. I think there are likely certainly five votes on the court to hollow out Roe and possibly five, and maybe now six to overturn it entirely.

Preet Bharara:

How does this compare to the last time that I think something this dramatic happened? And maybe I’m forgetting one in between, but when Thurgood Marshall was replaced by Clarence Thomas, how do you compare this to that?

Melissa Murray:

Well, so when Justice Thomas joined the court, I’m not sure that the court was at that point even as skewed so far to the right as it is now. I mean, there were definitely members of the court who were appointed by Republican justices, but they were not necessarily conservative in the way that we understand that today.

Melissa Murray:

I mean, the justices that we have on the court now really were raised in the conservative legal movement, right? So this is the rise of a movement that really happened from the 1980s forward. And Justice Thomas was certainly part of that and maybe he is the introduction of that model of justice to the court.

Melissa Murray:

But folks like Harry Blackmun, Warren Burger, I mean, they were conservative like pro-business Republicans, but they weren’t steeped in a movement in the way that the members of the conservative wing are now. And these were justices who were vetted by members of the conservative legal movement, the Heritage Foundation, the Federalist Society, Leonard Leo, they were all instrumental in selecting these individuals.

Melissa Murray:

So they come with a kind of training and credentialing that is very similar and speak to a particular kind of conservatism. So I think that’s one thing that’s really different. I think we will see in this particular nomination the same kind of dynamic we saw with the Thomas nomination. Justice Thomas was nominated to replace Thurgood Marshall. Thurgood Marshall was the first African-American to sit on the court.

Melissa Murray:

And there was a lot of pressure, I think on president George H.W. Bush to similarly appoint an African-American to fill the Marshall seat. But the question of identity is only one question. I don’t think anyone could say that although Justice Thomas is African-American, his sensibilities about jurisprudence are similar to those of Justice Marshall.

Melissa Murray:

In fact, some might argue they’re 180 degrees from Justice Marshall. And so in the same way, a woman may be nominated to replace Justice Ginsburg but I doubt that that woman, because of why she is being selected, will bring to the job the same sensibilities as Justice Ginsburg did.

Preet Bharara:

You tweeted it. I’m going to quote back a tweet that you posted recently, “the nominee will be a woman and that’s where the similarities will begin and end,” which is essentially what you’re saying.

Melissa Murray:

I think that’s right. Again, I think that’s purposeful. It’s going to be very hard for Democratic senators to vote against a woman to fill Justice Ginsburg seat. If the woman also happens to be a woman of color, I think that makes it doubly difficult. But make no mistake about it, this is not going to be a jurist in the mold of Justice Ginsburg.

Preet Bharara:

Can we go back to Roe for a second and reproductive rights? Can you explain to folks, what is the posture in which, in the sort of near term or medium term that this group of justices five or six votes, probably five, who are prepared to overturn Roe, in what context will that happen? And if that happens, just know given what the litigations are around the country and the day after that decision, is there some circumstance in which people will no longer be able to get abortions because of the supreme court decision in the medium term?

Melissa Murray:

It’s a terrific question. Right now there is no case on the court’s docket for OT 2020 that would present a frontal challenge to Roe versus Wade. And to be clear, the Jude Medical Services case was not a frontal challenge to Roe. But there are lots of cases percolating at the lower federal courts where it is worth mentioning.

Melissa Murray:

The president has been incredibly successful in packing the lower federal courts with young conservative judges who in the manner of his current appointees on the court have some antipathy for abortion and reproductive rights. So we’re seeing a lot of cases percolating up. These can be challenges to those Heartbeat Bills that we saw just a couple of years ago proliferating around the country.

Melissa Murray:

These are laws that prohibit abortion at the time that our heartbeat can be identified. And that can be as early as six weeks in some cases when a woman might not even know that she’s pregnant. So there are questions on whether or not that is a pre viability ban in violation of Roe. And so that could present a frontal challenge.

Melissa Murray:

There have also been throughout the country a proliferation of what I call trait discrimination, abortion restrictions whereby various states… and there was also an effort to make this a federal law as well, but to prohibit abortion for the purposes of sex selection, race selection, or in the event that a fetal abnormality or disability was detected.

Melissa Murray:

And there was a case in 2019 out of Indiana that came before the court that would have challenged one of these trait selection laws. And the court did not grant cert on it, but it prompted a really interesting, separate writing from Justice Thomas who argued that those kinds of trait selection laws were merely the state’s way of a modest attempt, he said, by the state, in this case, Indiana, to prevent abortion from becoming a tool of eugenics.

Melissa Murray:

And in that opinion, he went on to link abortion to the eugenics movement and the birth control movement, which he said was also shot through with efforts to basically curb reproduction among undesirable minorities. And so I’ve written this paper that’s coming out in the Harvard Law Review, arguing that the introduction of race as an element in abortion by Justice Thomas, and the concurrence has been picked up in a number of lower court opinions, is really interesting. Because until now there has been no really successful effort to formally overrule Roe versus Wade.

Melissa Murray:

And people have argued that it’s untethered to the constitution, it’s untethered in constitutional tax, it’s a moral blah, blah, blah, on and on, but they’ve never been able to completely overrule it. One of the, I think, special factors that has been used in other contexts to overrule settled precedent is the introduction of some kind of racial narrative around the precedent or the law that the precedent upholds.

Melissa Murray:

So for example, if you think about Trump versus Hawaii where the court discredits and formally disavows Korematsu, Chief Justice Roberts talks about that opinion was racist when it was decided. Just this last term, there was a case Ramos vs. Louisiana in which the court struck down Louisiana’s non-unanimous jury law which had been in place since reconstruction.

Melissa Murray:

It had been upheld in a case called Apodaca from the 1970s. The court in striking it down just this year have talked about how the Apodaca court had failed to appreciate the racist origins of this rule. And so I think there’s this really interesting moment where Justice Thomas’s effort to read race into the origin story of abortion and to talk about abortion and its disparate impact on minority communities may also be not just an effort to uphold these trait selection laws, but more provocatively, an effort to provide a new justification for striking down Roe.

Preet Bharara:

Right, in a sort of strategic manner. But so take us through the following. Let’s say one of these Heartbeat Bills gets decided in a particular way in the lower courts and one or more cases wind their way up, wend their way, I don’t know if it’s wind their way or wend their way.

Melissa Murray:

Wend.

Preet Bharara:

I think they both work.

Melissa Murray:

Wend. I think it’s wend.

Preet Bharara:

Wend. But wind also can be, I don’t know. [inaudible 00:57:48].

Melissa Murray:

Possibly. It depends on the case.

Preet Bharara:

I’ll have to think about wend and wind. And the supreme court agrees to hear at some point in the future, 12 months, 18 months, 24 months, one of these cases that turns on the constitutionality of the Heartbeat Bill and the supreme court rules five to four, which seems to be a possibility if not a likelihood, that not withstanding Roe, no abortion once a heartbeat is detected. When that case comes down, what does Congress do? What do doctors do? What happens the day after that decision? And have I sketched out a reasonable scenario?

Melissa Murray:

I think it is a reasonable scenario. So one thing that happens at the state level is that throughout the South and the Midwest, there are a number of states that already have Roe trigger laws in place, which is to say that if Roe versus Wade is overturned or formally disavowed in some way, I think a case like this would be considered an overruling because it would basically allow a kind of pre-valuability ban on abortion. Then abortion is just per se, illegal in those jurisdictions.

Melissa Murray:

And so that pretty much hollows out the South and the Midwest as regions in which abortion cannot be obtained. And it leaves the West coast, the states in the West coast and the Northeast as really the only places where in the United States you can get an abortion. So that sort of throwing it to the states and then we have this kind of divided.

Preet Bharara:

Right. So I just want to make that clear for folks because I think some people believe that the supreme court in a ruling about Roe would have the effect of banning abortion everywhere no matter what as a principle of federal law. That is not the case, it will be up to each individual state.

Melissa Murray:

States can do that, yes. So it’ll likely be a challenge to the particular state law, and different States can have different laws about what they prohibit or provide for in their respective jurisdictions. And so right now there are a number of states, mostly in the South and the Midwest that have these trigger laws that would make abortion absolutely illegal in their jurisdictions if Roe were disrupted in some way.

Melissa Murray:

And then there are states like New York, for example, that have much more wide ranging access and have actually taken steps to codify into their state laws the protections that Roe provided. So New York is one of those laws. So it sets up not unlike the pre civil war United States, I kind of sort of safe zone for reproductive rights and then other places that are not safe zones. And maybe you can travel toward them if you have the means to do so, maybe you can’t.

Melissa Murray:

But that doesn’t… I think the full threat is that emboldened by a change in the jurisprudence of the court and emboldened by these trigger laws that will automatically go into effect in these various states, Congress could also act maybe to pass a law that amends the constitution to provide for fetal personhood, maybe to just put a pass and blanket law that would prohibit as a matter of federal law, various kinds of abortion procedures. And that would actually have impact across the country, regardless of any individual states provisions for abortion.

Preet Bharara:

But what if the Senate and the house are in Democratic hands when this Heartbeat Bill gets ruled upon, in my scenario, what does Congress have the ability to do with respect to those states in the South that have those trigger laws that would ban abortion?

Melissa Murray:

So some have argued that Congress could pass a lot to essentially codify in federal law some of the protections for Roe that were overturned in whatever this decision was. And that could surely happen. And if Congress is held by the Democrats and the presidency is held by the Democrats, that too seems likely. But then there’s surely going to be a legal challenge to it. It will progress through whatever district court and then circuit court, and then likely to the supreme court and there you still have your conservative super majority. So all roads kind of lead to the court in that respect.

Preet Bharara:

All right. Let’s talk about something in the near term, the Affordable Care Act. A challenge to the Affordable Care Act is supposed to be heard in oral argument the week after election date, November 3rd. Is it correct, as some experts have been saying, that whether or not there is a ninth justice confirmed that the Affordable Care Act is essentially doomed because of 4-4 decision, even a 4-4 decision would leave the lower court’s decision in place and that was bad for the ACA.

Melissa Murray:

Yes, that’s correct. So this was a case that was held over from October term 2019, so there’s already, I think, a little bit of strategery to that. The decision to hold it over, I think was perhaps to avoid having the ACA and the court be associated in the minds of the voters as they went to the ballot box.

Melissa Murray:

Although given everything that’s happened over the last week, unclear whether that strategy is going to work out, but it is the case that the court will hear oral arguments on this third challenge rather to the ACA just a week after the election. And as you say, if there are nine justices, there are surely five to gut the ACA.

Melissa Murray:

I mean, again, Chief Justice Roberts in 2012 was the pivotal vote with the liberals to uphold the ACA, unclear whether his vote alone would even be helpful if there was a nine person court with six conservative justices. If there is just an eight person court, then you could imagine the court splitting four to four if the chief justice joined liberal wing, but he doesn’t have to, it could still be five to three. But if it were split four to four, then the lower court ruling, which was against the ACA would be the law going forward.

Preet Bharara:

All right. Well, thanks for that.

Melissa Murray:

I mean, I think it is worth noting.

Preet Bharara:

It’s important for people to understand I think there’s a lot of confusion about how these things work and I think clear answers on what the consequences will be, I think are important for people to make up their mind about voting and how important the court is. Can I ask you another longer term question? Is marriage equality at risk?

Melissa Murray:

So again, I think this is a little bit like the question of how Roe has fared over the last 40 years. As you know, in 2015 the court decided Obergefell versus Hodges, which legalized same sex marriage across the country. And I’m not sure that the court would be willing, especially so soon after that decision was rendered to overturn it entirely.

Melissa Murray:

But there are lots of things that the court can do to trim back the kinds of protections that LGBTQ people can expect, and certainly same sex couples can expect. And we’ve already seen some glimmers of what this might look like. So in 2016 in a case called Pavan versus Smith, this was a challenge to a state birth certificate registration that prevented parents of the same sex from both being listed on a child’s birth certificate.

Melissa Murray:

We had then brand new Justice Neil Gorsuch write an opinion in which he argued that Obergefell did recognize a right to same sex marriage, but it didn’t go so far as to limit the states from imposing restrictions rooted in biology on certain administrative regulatory procedures like the registration of a birth certificate.

Melissa Murray:

So that’s just kind of a biological difference that the states can have like there’s a mother and there’s a father and you don’t have to recognize two mothers. You can only recognize one mother because that’s biology. And so he’s already sort of on record, is saying this and there may well be others who are persuaded by that particular position.

Melissa Murray:

And so that’s one way in just sort of how birth certificates and parental rights are assigned to same sex couples that could be imperiled. There’s also of course, the whole question of the interaction between religious liberty on the one hand and anti-discrimination law on the other, and the court took this up in 2018 in a case called Masterpiece Cakeshop.

Melissa Murray:

This was the famous bakery case in which the Christian evangelical baker refused to make a cake for the wedding of a same sex couple. The court never actually decided the merits of it, it kind of punted on this. And this was one of Justice Kennedy’s last decisions for the court before retiring.

Melissa Murray:

But in this upcoming term, there was a case called City of Philadelphia versus Fulton in which the court will have to take on a follow-on question to those issues raised in Masterpiece Cakeshop, which is whether or a religious organization must be required as a condition of receiving city grants or state and local grants has to comply with the city’s anti-discrimination ordinance, which requires it to serve all comers, including same sex couples.

Melissa Murray:

So this is an issue dealing with an adoption agency that refuses to allow same sex couples to either adopt or foster children. So these are all the kinds of questions that might be around the corner that will surely make a dent in the way that same sex couples live their lives even if it doesn’t necessarily overrule Obergefell versus Hodges.

Preet Bharara:

Do you want to opine on this potential Democratic threat to “pack the court, expand the court” if Trump succeeds in getting his nominee confirmed? Is it a good thing? Is it a bad thing?

Melissa Murray:

I mean, I don’t know if it’s a good thing or a bad thing. I’m on record in the New York Times as saying that I don’t think term limits for the supreme court are a good idea. I think I wrote that in 2016 or something in one of those debates with another law professor. And I certainly understand the concerns that people have about adding more members to the court.

Melissa Murray:

I think the reason why though you were seeing these kinds of proposals and they’re increasing in their urgency is because I think people are really angry and deeply worried about the prospect of minority rule. I mean, there is already this episode in 2016 in which Mitch McConnell refused to hold a hearing for president Obama’s nominee, Merrick Garland. And instead, they waited for quite a long time and then Trump was elected and Neil Gorsuch was appointed to that seat.

Melissa Murray:

And this looks like a complete about face when they’re not waiting for the election to be completed before identifying a successor for Justice Ginsburg. People are voting as we speak. And the democratic legitimacy arguments that McConnell launched in 2016 seem to be even more pressing now. So this kind of looks like a naked power grab and it is. And I think the calls to rebalance the court are just that.

Melissa Murray:

I mean, I think they’re an effort to recognize that the court that we have, the court that we will have is the result of a kind of minority rule that would not happen if democratic processes were allowed to play out. And allowing the court, which has such a profound say in so many issues that affect people’s lives to not be on the ballot, to not be determined, at least in part by the people, feels a little bit like the tyranny of the minority. And so I think that’s what’s animating these claims. I don’t if they’re good or bad, but I think that the circumstances that have prompted them are definitely not good for a healthy democracy.

Preet Bharara:

I will take that as a hedge. Now look, but part of the issue is, and I don’t know how many people appreciate this, that based on the vagaries of when justices have retired or passed away and who gets elected and what timeframe, Jimmy Carter was president for four years, got zero nominees. Trump, president for four years gets three, 15 of the last 19 I believe. 15 in the last 19.

Preet Bharara:

Over 52 years, it’s a huge disproportionate number. Those nominees who come from Republican presidents, far out of whack compared to how many years Republicans have had the presidency. And so that in combination with the maneuverings of the senate majority leader Mitch McConnell and others is just, I think for some people a little too much to bear, and a rebalance seems in order.

Melissa Murray:

I think that’s right. I think people understand intuitively that the court is a counter majoritarian institution, right? I mean, these people are appointed for life. They’re not accountable to the voter in any way, except at this moment when they are nominated where they reflect the choices of someone who has been democratically approved, who has a mandate, if you will, from the people and by a body that also has a mandate from the people.

Melissa Murray:

And I think a lot of this could have been avoided if 2016 and what happened with Merrick Garland had not occurred. I mean, I think that really was the pivotal moment. And it was outrageous what the Republicans did. It was outrageous that the Democrats didn’t fight harder, but I believe most people expected Hillary Clinton to win and that the issue would be moot in any respect, but obviously that’s not how it happened. And Monday morning quarterbacking is the worst, but Democrats should have fought harder over the effort to grab that seat and to keep it until the election was completed.

Preet Bharara:

So this point about the court being kind of majoritarian intentionally in the structure of the constitution, that’s certainly true. But does there come a time when that gets way, way out of whack? And people have been making this comparison to the Dred Scott court from the 1850s, and I think maybe other times as well.

Preet Bharara:

My question is imagine Trump gets his nominee in place and then the court is static for years. I mean, I guess Justice Breyer is getting on in age, but suppose you have the 6-3, and suppose he gets reelected and you have a 7-2 conservative court, 20 years hence, but the Congress and the general population of the United States has moved significantly further left. And there’s good reason to believe that that might be so. What happens to that conflict between where the country is and where the court is some years from now?

Melissa Murray:

We’ve had one episode in our history where that conflict was really clear and that of course was the conflict between the court and President Roosevelt over the New Deal. And it was a little different because that was a 5-4 court. And you had the four horseman justices Butler, Van Devanter, Sutherland and McReynolds all voting against the New Deal legislation.

Melissa Murray:

And that was what prompted Roosevelt to talk about adding more members to the court. This is probably even more extreme as you set it up, I mean, because this will be a situation where it’s not a kind of 5-4 or evenly or precariously balanced court where one justice may tip things or there’s a chance of the president’s program or a policy agenda surviving because one person shifts his or her vote.

Melissa Murray:

This is a solid conservative majority and you need definitely more than one person to tip a balance here. And I think that’s part of why this feels really different and why these calls for court reform have become so much more urgent and why it feels like the court is not just counter majoritarian right now, but maybe even anti-majoritarian. And that’s not a place I think where we have been before even though we’ve been, I think in situations that are close to it, I don’t think that it’s ever felt quite as precarious as it feels now.

Preet Bharara:

Melissa Murray, thanks so much, long overdue. At some point, I hope to see you back at NYU campus.

Melissa Murray:

Likewise, thanks for having me.

Preet Bharara:

My conversation with Melissa Murray continues for members of the CAFE Insider Community. Try out the membership free for two weeks at cafe.com/insider. You’ll get access to the full archive of exclusive content, including the weekly podcast I co-host with Anne Milgram, the Cyber Space Podcast with John Carlin, the United Security Podcast, co-hosted by Lisa Monaco and Ken Wainstein, audio essays by Elie Honig and me, and more. Again, that’s cafe.com/insider.

Preet Bharara:

As Melissa and I discussed, Ruth Bader Ginsburg had a significant and influential career as a legal advocate for women and minorities long before she joined the supreme court. So this week I’d like to end the program with a couple of recordings that give a glimpse of Justice Ginsburg’s brilliance during her days with the Women’s Rights Project at the American Civil Liberties Union.

Preet Bharara:

In January 1973, RBG delivered her first ever oral argument before the Supreme court, the case Frontiero v. Richardson involved a challenge to a federal law that said female military spouses automatically qualified for dependent benefits, but males did not. Ginsburg acting as a friend of the court offered a passionate argument on behalf of First Lieutenant Sharron Frontiero, a young physical therapist in the Air Force. Ginsburg argued that denying her the right to her husband, Joseph, a full time student as a dependent violated her constitutional rights.

Ruth Bader Ginsburg:

Opponents believe that appropriate interpretation of the 5th and 14th amendments would secure equal rights and responsibilities for men and women. But I also stressed that such interpretation was not yet discernible. And in any event, the amendment would serve an important function in removing even the slightest doubt that equal rights for men and women is fundamental constitutional principle.

Ruth Bader Ginsburg:

In asking the court to declare sex a suspect criterion, amicus urges a position forcibly stated in 1837 by Sarah Grimké, noted abolitionist, an advocate of equal rights for men and women. She spoke not elegantly, but with unmistakable clarity. She said, “I ask no favor for my sex. All I ask of our brethren is that they take their feet or fall next.” In conclusion, amicus joins appellants and requesting that this court reverse the judgment edit below and remind the case with instructions to grab the relief requested in appellant’s complaint.

Speaker 5:

Thank you on this verdict.

Preet Bharara:

Two years later, Ginsburg argued before the court in Weinberger v. Wiesenfeld, a case concerning gender discrimination and social security benefits. In a move that became central to Ginsburg’s larger strategy, she argued for a widower husband who didn’t receive benefits following his wife’s tragic death because he was a man. As Ginsburg argues here, the discrimination reinforced gendered expectations that hurt both men and women.

Ruth Bader Ginsburg:

This attempt to wrap a remedial rationale around a 1939 statute originating in and reinforcing traditional sex-based assumptions should attract strong suspicion. In fact, Congress had in view, male breadwinners, male heads of household and the women and children dependent upon them. It’s attention to the families of insured male workers, their wives and children is expressed in a scheme that heaps further disadvantage on the woman worker.

Ruth Bader Ginsburg:

Far from rectifying economic discrimination against women, the scheme conspicuously discriminates against women workers by discounting the value to their family of their gainful employment, and it intrudes on private decision-making in an area in which the law should maintain strict neutrality.

Ruth Bader Ginsburg:

For when federal law provides a family benefit based on a husband’s gainful employment, but absolutely bars that benefit based on a wife’s gainful employment, the impact is to encourage the traditional division of labor between man and woman. To underscore twin assumptions. First, that labor for pay including attendant benefits is the prerogative of men, and second that women, but not men, appropriately reduce their contributions in the working life to care for children.

Preet Bharara:

These are two of the first recordings showcasing Justice Ginsburg’s depth legal mind, and passion for justice. She left behind a lifetime of them. And we hope that in the coming weeks, you too will search out some of her opinions, dissents and interviews and that they will inspire you to fight for justice with the same spirit and zeal as the one and only, Ruth Bader Ginsburg.

Preet Bharara:

Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Melissa Murray. If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics and justice. Tweet them to me at PreetBharara with the hashtag AskPreet or you can call and leave me a message at 669-247-7338. That’s 669-24-PREET.

Preet Bharara:

Or you can send an email to [email protected] Stay Tuned is presented by CAFE Studios. Your host is Preet Bharara. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The senior audio producer is David Tatasciore. And the CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Weiner, Jake Kaplan, Calvin Lord, Jeff Eisenman, Chris Boylan, Sean Walsh, and Margot Maley. Our music is by Andrew Dost.

Preet Bharara:

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