By Andrew Cohen
Berkeley Law Professor Amanda Tyler calls the year she spent clerking for Supreme Court Justice Ruth Bader Ginsburg a life-changing experience.
Reflecting on Ginsburg’s September 18 death with four faculty colleagues during a livestreamed Berkeley Law Conversations panel, Tyler recalled her exhilaration — and trepidation — when Ginsburg flew west last fall to give the inaugural Herma Hill Kay Memorial Lecture. Kay, Berkeley Law’s second woman professor and first woman dean, was one of Ginsburg’s closest friends and they co-authored the nation’s first casebook on sex-based discrimination.
“The justice was so committed to doing the event,” said Tyler, who interviewed Ginsburg for an hour-plus before a packed gathering at Zellerbach Hall. “She did it over my objections. I was really concerned about her flying; she was fighting cancer … but it was so important to her to honor Herma and honor Herma’s legacy here.”
As for Ginsburg’s legacy, Tyler said, “Even if she hadn’t been on the Supreme Court, we would be talking about her today. Her legacy as an advocate completely changed the face of American society.”
As recently as the 1960s, Tyler noted, the Supreme Court upheld state laws excluding women from jury service. By the end of the 1970s, she said, the court was routinely striking down laws like that in many cases Ginsburg litigated.
Tyler said Ginsburg opened the court’s eyes to “how putting women on a pedestal is actually putting them in a cage, holding them back.” She added that Ginsburg viewed the Constitution as “an expanding document of inclusivity” and understood that the court’s rulings had “very real ramifications of the lived experiences of Americans.”
Calling Ginsburg “the kindest, most brilliant, most inspiring boss I could ever ask for,” Tyler said “she demanded the best from you and wouldn’t accept anything less … She was inspiring, resilient, determined, and profoundly dedicated to public service. Working with her was like being on a team with Michael Jordan. She brought out the best in everyone around her.”
Professor Catherine Fisk ’86 discussed how Ginsburg improved the law even in Supreme Court cases she lost as a lawyer or rulings she disagreed with as a justice — specifically in the areas of pregnancy discrimination and employment discrimination.
In one case, she represented an Air Force female officer who was discharged solely because she was pregnant, arguing the termination violated the Constitution’s Equal Protection clause. Fisk said Ginsburg’s arguments “were so compelling to so many, that in 1978 Congress did what the Supreme Court refused to do and legislatively overruled the court in the Title VII area.”
Fisk also mentioned the 2007 case of Ledbetter v. Goodyear. A supervisor for nearly 20 years at Goodyear, Lilly Ledbetter’s initial salary was in line with her male colleagues occupying the same position. But over time, she earned $1,000 less per month than men in similar roles with equal or less seniority.
The Supreme Court ruled that Ledbetter could not challenge the pay gap because the six-month statute of limitations for filing sex-based discrimination claims began to run on the date the decision was made to set her pay.
“Justice Ginsburg recognized in her dissent that this was a license to discriminate and that it overlooks common characteristics of pay discrimination,” said Fisk, noting that her arguments led to a significant expansion of when such claims could be brought. “The first piece of legislation President Obama signed was the Lilly Ledbetter Fair Pay Act.”
Racing to fill Ginsburg’s seat
Professor Orin Kerr, who clerked for Supreme Court Justice Anthony Kennedy, noted that Ginsburg was approved by a 96-3 vote in the Senate, which he called “unimaginable today.”
Kerr said the timing of Ginsburg’s death — less than seven weeks before the presidential election — adds major fuel to an already combustible campaign. “We’re in a truly extraordinary situation right now,” he said.
Kerr predicted that President Trump will nominate conservative U.S. Seventh Court of Appeals Judge Amy Coney Barrett and push to get her confirmed by the Senate as quickly as possible.
“Can you get four defectors from the Reublican side to say we’re not going to vote to fill the seat until after the election?” Kerr said. “Not only is there going to be an enormous partisan brawl over filling the seat, but I suspect this will considerably change the presidential race itself.”
What comes next
Dean Erwin Chemerinsky addressed the court’s seismic shift if a conservative justice is installed before the election. He noted that with five right-leaning justices, Chief Justice John Roberts — who surprised many by siding with the court’s four more liberal justices in two major rulings this past term — would no longer be the swing justice in many cases.
“I have no doubt, none, that there will be five votes to overrule Roe v. Wade, and that they’ll want to do it soon,” Chemerinsky said. “Shifting the swing vote to someone much more conservative is going to really matter as this seat is going to be in the hands of a conservative for decades to come.”
Exploring how rushing to confirm a replacement will affect the court’s legitimacy, Chemerinsky highlighted the contrast of what happened with Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit. When Justice Antonin Scalia died more than eight months before the 2016 election, the Republican-controlled Senate did not hold hearings with Garland, Obama’s pick to replace Scalia, stating that whoever was elected president should nominate a replacement.
If Ginsburg’s successor is rushed through, Joe Biden defeats Trump, and Democrats gain control of the Senate, Chemerinsky thinks the Democrats will expand the size of the Supreme Court. “This is not set by the Constitution but by statute, and has ranged over the course of history from five to 10 justices,” he said. “I think Democrats will say it’s the Republicans who packed the court with what they did in 2016 and 2020, and that this is simply meant to offset that.”
Like Kerr, Professor Bertrall Ross argued for replacing the Supreme Court’s lifetime appointments with term limits rather than expanding its number of justices. Packing the court through political maneuvering, he said, is “quickening the demise of the institution.”
Ross also called for making “clear distinctions” between the justices and the office they hold and expressed concern about justices being viewed “as a rock star or superhero.”
Stressing the importance of remembering that justices are “servants of the people,” he pointed out concerning implications for the court through “hubris from a misunderstanding of its role.”
While stressing that Ginsburg “made our society more just and equal,” Ross added that she “shouldn’t be venerated but rather appreciated and even celebrated for the dignity and integrity with which she served the people.”
Acknowledging the difficulty of justices subordinating their subjective values, Ross sounded a note of caution: “If the court decides to return to its role in the 1930s as an impediment to the democratic resolution of crises, it could see its standing fall, and with that fall of the court will be fall of the republic as we know it.”