“We’ll just have to keep doing the work”: Ginsburg’s clerks remember her example in a tumultuous term
on Sep 26, 2020 at 12:12 pm
The members of the 2016-17 clerk class for Justice Ruth Bader Ginsburg started their clerkship amid great uncertainty and a grieving court. In the second in a two-part series of interviews with former Ginsburg clerks, SCOTUStalk host Amy Howe talked with all four of the justice’s clerks from that term: Subash Iyer, Hajin Kim, Beth Neitzel and Parker Rider-Longmaid. Between the recent death of Justice Antonin Scalia, a contentious election, and two nominations for one seat, they describe the year as “a slow-motion train wreck.” But amid the chaos, they remember Ginsburg’s commitment to doing the work, notable cases that advanced justice, and the few special times they made her laugh.
The full transcript is below.
[00:00:00] Oyez! Oyez! Oyez!
Amy Howe: [00:00:03] This is SCOTUStalk, a nonpartisan podcast about the Supreme Court for lawyers and non-lawyers alike, brought to you by SCOTUSblog.
AH: [00:00:13] Welcome to SCOTUStalk. I’m Amy Howe. Four years ago, the law clerks for Justice Ruth Bader Ginsburg started the new term amid a lot of uncertainty.
[00:00:22] Justice Antonin Scalia had passed away in February 2016, so the court was operating with just eight members. Then-sPresident Barack Obama had nominated Judge Merrick Garland to replace Scalia, but Senate Republicans had refused to hold hearings or a vote. In January 2017, the new president, Donald Trump, nominated Neil Gorsuch to fill the vacancy. He was confirmed and took the bench a few months later. We’re delighted to have those four law clerks with us today to discuss that unusual term and how Justice Ginsburg responded. Joining me are Subash Iyer, Hajin Kim, Beth Neitzel, and Parker Rider-Longmaid.
[00:01:02] So you all were clerks in the October Term of 2016, and it was an unusual term. The term started with eight justices and a stalled nominee, and then there was a hotly contested election. How did this shape your experience? Did it shape your experience?
Parker Rider-Longmaid: [00:01:21] You know, you mentioned it was an eight-justice court. And so it you always had the potential for the court disagreeing, but being unable to resolve cases. And by the end of the term, we did see some of that. But there, of course, was a lot going on, as you mentioned, that year. And it was the year of a presidential election. And, in fact, that vote, when we when we learn the result was right before a major argument. I think that that was happening that term and in Sessions v. Morales-Santana. And actually the case at that time was called Lynch v. Morales-Santana. And it was an interesting sensation going from having learned the results of this election into an argument where the court had the potential to address this very important disparity between the way men and women were being treated and having to, at least for me personally, balance feelings that I was having at that time about what was going on in the world and what was going on before the court.
Beth Neitzel: I think it did shape the year in a number of important respects.
[00:02:34] I think that all of us started the clerkship anticipating that our boss, Justice Ginsburg, would perhaps be the most influential justice on the court, before long, right, she was the senior-most justice in the liberal bloc. I certainly believed that ultimately the Senate would indeed carry out their constitutional duty to put forth the president’s nominee. With the election, of course, everything changed. And I think any hopes that the Senate would indeed carry out its duty was lost, and everything slowly started to change. I sort of think back to that year like a slow motion train wreck, certainly after the election dynamics on the court started to change and it was publicly known that a lot of cases started to be relisted continuously for a very long period of time until that ninth justice was confirmed. So, know, I think the expectations we had for the year were very different from how the year turned out, and watching all of that unfold during the term was really hard and was pretty discouraging, to be honest. I mean, I think by the end of the year, there were times that we were struggling as clerks. The justice, I mean, that was the most remarkable thing. The justice never seemed to. She always was calm, determined, unflappable. And so we tried our best to be that way. We were never as good at it as she was. And I think that’s what we’re all striving for right now.
Subash Iyer: [00:04:29] I mean, I think one of the interesting dynamics of the year, from my perspective, was that it sort of preceded as three separate phases. There was the phase leading up to the election where we really did think that there would be a ninth justice filled relatively soon.
[00:04:46] And then there was a long period between November and roughly April when Justice Gorsuch was finally seated. And in that six-month window, the court was still operating as an eight-member court. But the dynamics had changed. And then at the end of our term, I find it to be a very interesting experience, to have a whole new set of clerks and a new justice come into the building, especially when you have a fairly cohesive clerk class. And for just one month of cases, there is a new set of clerks in the building and a new justice in the building. But I think we all, as a group of existing clerks, navigated that transition as smoothly as we could. But there were some very important cases in April. And in particular, one of the things that was notable about that term was that there were relatively few capital cases. But in the month of April, there was a stretch of eight capital cases that were scheduled in the last two weeks of that month. And that, I think, was a particularly challenging period for all of us, because the work that the court does on its capital docket is among the most emotionally exhausting and draining work that any clerk does. And to have that much in rapid succession and a brand new court with nine justices at the end of a term that was very exhausting, was very difficult. So that last three-month stretch from April until we got the opinions out, it felt like a very different year.
[00:06:19] And I think the dynamics have changed.
AH: Hajin, do you have anything you want to add?
Hajin Kim: I just really want to echo what Beth said, which is that we started the term with really a lot of hope and then it was November with a shock. And the fact that, you know, Judge Garland wasn’t seated, that was also a shock, although more of the slow, slow moving train wreck that Beth was saying than the election. One question you asked in the set of questions was if we had any advice for OT20 justices’ clerks. And I really tried to think like, you know, what advice do I have aside from sort of what Beth was saying earlier about how the justice would just keep soldiering on and do the work. And I think it’s really hard to say because I really think that people to ask are actually the OT15 clerks because they dealt with Justice Scalia’s passing. And I think that’s really hard for everybody in the building. It’s especially hard for the clerks of the justice who passed.
PRL: [00:07:16] I think it had one thing, which is that Justice Ginsburg really set an example for us even during this hard time. And when Justice Gorsuch started on the court, and I’m sure this is known because we’ve seen it in the media as well.
[00:07:29] But she turned around and offered Justice Gorsuch her law clerk manuals as a way that he could begin his time on the court with something to work with. And it’s very interesting. You look at the long history of these institutions. That manual, I guess, had its inception in one way or another in the manual that Justice Byron White had passed on to Justice Ginsburg. And Justice Gorsuch, of course, was a clerk at that time, having been hired by Justice White and served with Justice Kennedy. So there’s a long respect that the justices have for each other. And I think Justice Ginsburg taking the long view of all this. And we certainly spent time talking with her and working through our feelings on what was going on in politics, in the world and at least to me personally, and I’m sure you get different answers from other people. But one of the comforting things for me was that she had been through so much in her life and she had seen she had seen the Second World War and she had seen all these cases she argued as an advocate before the court and all the change she had made. And she had been through many different elections and very hotly contested times and seen the pendulum swing back and forth. And she had a different perspective on it, I think than we might be able to have in our short lifetimes. And so I continue to think of that when I think about what’s coming next and what we can expect and what we might be able to do in our own lives.
AH: [00:08:58] So, Subash mentioned the capital cases that term. What else do you remember in terms of the work? But is there a dissent or something about Justice Ginsburg at oral argument, in any of the cases that sticks out to you see what I mean?
SI: [00:09:15] I think one of the one of one of the cases that term that I think had an impact was Moore v. Texas, which was the case that we heard early in the term. And it was a capital case. And the question before the court was whether Texas’s approach towards identifying whether a capital defendant had an intellectual disability that would prevent them from being executed, whether that approach was rooted in modern scientific and psychiatric principles. And they ultimately upheld the idea that the evolving standards of decency that we all know to be central to the Eighth Amendment, that those standards do depend on and do reflect changes in science. And so it was an opinion that Justice Ginsburg wrote that term and she held a narrow majority. I think it was a 5-4 decision where she had Justice Kennedy and along with the four more traditionally liberal justices. So that was that was an important case, I think, for establishing that there are still scientific standards that also govern the Eighth Amendment.
BN: [00:10:36] I was just going to say I’m going to share a memory of the justice. That’s a little bit more in general. It’s not it’s not unique to a case, but it’s something I think of whenever I think of working on cases with her, working on opinions, something that I think that a lot of people may not know about the justice, I mean, a lot of people know that the justice with a law professor at some point in her career, but just how much of a teacher the justice always was through and through, I’m not sure is widely known. And that really came through when we worked on opinions with her. She would have us draft opinions in triple-spaced Courier fonts like that old typewriter font, but with large gaps between each line so that she could edit it very carefully by hand. And then she would call us in and you would sit down at this little table with her. She would walk you through every one of her edits and explain why she did that. Or she would ask you sometimes, sometimes with the expression…
AH: In all seriousness, how long does that take? It must take hours, right?
BN: [00:11:47] So, I mean, depending on how early. Yeah.
[00:11:49] How long the draft was, how extensive her edits were, et cetera.
[00:11:56] But she would also ask you sometimes why this word, sort of like why in the world would you put it that way?
[00:12:06] But often she may understand why you chose the tack you did, but then she would explain why her way was better. And it was. And it was it was really an extraordinary experience to say, it was pretty amazing that she took the time to do that. Right, to walk us through it all to as I said, I mean, to me, it just felt like she cared deeply about teaching. And that was the same way that she had approached her litigation prior to being appointed to the federal bench. She talks a lot about approaching her work on sex discrimination as educating these often quite elderly, usually white men. She said that the way she would think about it was, I just need to explain this to them because they don’t get it.
[00:13:00] And I just need to help them understand that the damage caused by stereotypes is all of this and it harms all of us. That was an approach she took with her work always, whether with her clerks in her opinions when she was a litigator, etc. and it was something that you saw till the end.
HK: just that just to add to that.
[00:13:25] So I always thought it was striking that because she cared so much about teaching, she would always say that she had been a law teacher, not a law professor, I think to emphasize the teaching and how important that was. And it is, you know, she just had, Beth mentioned that she really thought her view, her her job was to educate these judges who didn’t recognize the harms from discrimination. And it’s such. It’s such a beautiful and wise view in many ways, in ways I didn’t appreciate before, because instead of saying, oh, look at these terrible people who are like just, you know, being so bad to women, she said, oh, they just don’t understand. With reasoned dialogue, I can get them to understand. They just don’t see it. And so I just have to help them see it. And so she really to give everybody the benefit of the doubt and said we can we can get through this, we can make the world a better place. We just need to, you know, understand it better and like have a better perspective. And I think that’s really that’s you know, she had this famously wonderful and beautiful friendship with Justice Scalia. And I think it’s because she really, truly saw the good in other people, even though she was seemingly on these, like, partisan lines, she never really thought of it that way. It wasn’t partisan for her.
PRL: [00:14:44] We actually, there was a case our year that I think illustrates some of what Beth and Hajin have said. I mentioned it before. The Sessions v. Morales-Santana case. And it was a gender discrimination case, which, you know, will be huge with Justice Ginsburg on the court. And she did end up getting the opinion. The issue in that case was how federal law treats the children who are born to citizen mothers or fathers who are married or unmarried abroad. In this particular case, you had the son of a citizen father who was born out of wedlock, and his father actually had been born in Puerto Rico and had had spent most of his time in Puerto Rico up until about 20 days before he was 19. And at the time that disabled him from being covered by the federal law that would allow him to pass citizenship to his son. His son was here in this litigation at risk of being deported from the country because he wasn’t a citizen. So he was he invoked, he claimed, a right to citizenship based on his father’s right to citizenship. And at that time, the unwed citizen father had to have 10 years of physical presence in the United States.
[00:16:00] An unwed citizen mother only had one year. It was a little bit more complicated than that in terms of how it was calibrated. That’s essentially the picture. And so unwed citizen mothers had in some ways were able to pass citizenship much more easily than any other type of parent. And what Justice Ginsburg is able to explain in the opinion for the court, much like Beth and Hajin said is a teacher, if you go read that opinion, you’ll see how she approaches it and she goes through all the cases that that she had litigated as an advocate. And she says, you know when these laws are based on these stereotypes that in marriage, the man is the head of the household and he is the leader of the family. But that out of wedlock, the mother is the sole and natural guardian of the child. And she said it’s the only way to understand what’s going on here. And ultimately, the court’s decision is somewhat unsatisfying because they’re unable to provide any relief for Luis Morales Santana in that case, ultimately concluding that Congress would have wanted the longer period to apply to everyone.
[00:17:06] And the interesting thing is you’ll see the separate opinion from Justice Thomas, joined by Justice Alito, saying we don’t know why you’re addressing this discrimination question if the litigant here doesn’t get a remedy. Why are you doing this? And it’s very interesting. I think it’s one of the footnotes in the Justice Ginsburg opinion where she talks about the importance of rooting out discrimination even when you can’t necessarily afford a remedy for the litigant in that case and really doing something. This opinion that exposes, I think, again, for the world, the constraining effect stereotypes can have on everyone. And just one other example I would give and this goes to the point my colleagues have made about Justice Ginsburg’s relentless drive to continue having dialogue with colleagues she disagreed with. I don’t think there’s, I think you just point out that the same issue had come before the court several years before. I think it was in 2009 in the court. Justice Kagan recused and the court divided 4-4 on the question and was unable to resolve it. Well, you look at this opinion in Sessions v. Morales-Santana and has a 6-2 opinion. So if you think about the power that that changing hearts and minds and different ways of looking at the law can have over time. And I think we at least were able to spend some time with her when she was working through with the court on issues like this.
AH: [00:18:26] The traditional Jewish message of condolence is “may her memory be a blessing.” What blessings did Justice Ginsburg leave for you or has she inspired you in your life, your work, how you get along with your family and friends?
BN: [00:18:40] She has inspired me to pursue two feats that I will probably never attain. The first is to choose my words very carefully and to listen more than I talk, and that’s probably going to be a lifelong journey. And the other that I think is even more difficult is that she as the most gracious person I think I’ve ever known. She believed very strongly that you will not persuade others to join you if you demonstrate frustration or impatience or anger. She is often quoted as saying something along the lines of, you know, go out there and fight passionately for what you believe in, but do it in a way that makes others want to join you. And I think I’m pretty good on the first half of that.
[00:19:40] And I’m not always as good on the second half.
[00:19:43] And I think that will also be sort of a lifelong undertaking. But I really I thought that those two characteristics were quite remarkable. And it’s, even though I will probably never manage to do what she did, I think it’s worth striving to emulate it in any event.
HK: [00:20:10] I think she was the ultimate role model, I agree, I think she, I mean, everybody says, OK, she was that ultimate role model because she was so successful professionally and had this beautiful full life of family and friends and, you know, things that she cared about and was able to make it all work. But it’s I think it’s beyond that she you know, so before gratitude was this popular, in thing to exercise and like do a gratitude journal, she lived her life with gratitude, even though objectively like if we were thrust back into her era, we would probably just be really angry about a lot of things. So, you know, she had to, she went to law school, had a baby. Her husband gets very sick. And instead of saying, oh, woe is me, she goes, every part of my life gives respite to the other. I get to study. And when I study, I get to enjoy that. And then I, I go and take care of Jane, her daughter in law school. And then I get to sort of enjoy that part of my life as well. Whereas I think especially now in Covid times, it’s really hard for working parents and we’re all just kind of like, oh my gosh, I have so many things to do. This is awful. And she just really saw the bright side of all of that and appreciated it, and she even in her, she did so much to advance to advance women in the law. And instead of saying like, oh, ha ha, how great am I? Which she totally had the right to do. She is she was amazing. She instead said that she thinks it was her great, good fortune to have been able to participate in in the movement, like she just appreciates that she got to be part of that. That type of mindset, I think is incredible. And I would love to be able to adopt that. So. So, yeah, I think she’s an inspiration in every facet of life.
SI: [00:22:03] I think another blessing that the justice gave me.
[00:22:07] And I think that as the four of us talk over the past couple of days, the blessing is that she sort of gave us the tools to take this moment of incredible grief and try to channel it towards something good ,and in particular, I think the moment that all of us gravitated to when we heard about her passing and we’re feeling the grief was this conversation that we had the morning after the last presidential election. We went into the office and it was a really important oral argument, which Parker talked about earlier. And after the argument, we sat down with the justice and we talked about the cases because that’s what we always do. And after that.
[00:23:07] I think we were all just really struggling and so we asked her. Do you have any advice for us? We’re having a hard time today. And what she said was.
[00:23:23] Things will get better. We’ll just have to keep doing the work. And I think there’s something so powerful in the idea that you just keep doing the work and I think it’s what animated her whole life, she wasn’t in it for the glory. She didn’t even know when she started that she would be able to succeed in breaking all the barriers that she did and crafting the law that she did and making this world a better place. But I think her mindset always including after that election, which I think hit us harder than it hit her, was to just keep doing the work, and so, I mean, I think we’ve all been reflecting back on that moment. And it was it was incredible that all four of us that we all sort of centered on that moment. It’s such an important piece of our time with her. And I think it’s a lesson for all of us as we’re processing, because I think nationally we all are processing this grief that that’s probably what she would want us to do.
PRL: [00:24:22] I agree with everything my colleagues have said. I think I would add that in terms of the freedom I was talking about, Justice Ginsburg giving us some opinions like Sessions v. Morales-Santana. As I started into private practice after my time with Justice Ginsburg, I thought about how am I going to find time to be a father?
[00:24:48] And my son came probably about a week after I started and is now just has turned three.
[00:24:56] We all have very small children, all four of us. And I was able to look at the example Justice Ginsburg set as she was doing what goes without saying was incredibly important work and still finding time to spend with her kids.
[00:25:11] And for me, it was about making sure as much as I could getting home in time for dinner to see my son. And then as Covid struck and we all have been in our own ways trying to cope with that and all of us with working spouses. My wife is a pediatrician. And so in some ways made us more paranoid, I think, than a lot of people. And we’ve been doing our own child care and just finding ways to make that work and looking. I say this knowing my privilege, but being able to look at the justice’s example to say, I know what I’m going to be comfortable and telling people at work that I need to take this morning and take that afternoon. And I’m just not going to be available then, even though we have very demanding jobs. And I think she in many ways by saying, look, stereotypes should not govern our lives. They shouldn’t be written into our law. I think she gave us the freedom to look and say we can be strong people. We can be people in bonds with each other, and we can trust each other to do good work. And we don’t need to have these rules that really at the end of the day, just constrain us. I mean, if I can just for a moment, selfishly say I’m very, very grateful to her for that kind of thing and what she’s, I think, given to all Americans, there’s this hope and potential that we can look forward and say, what else do we need to look at in our law that we can that we can say this is holding us back, is preventing us from achieving our individual and collective potential.
[00:26:38] And I think she really thought about it and the whole bigger picture, and that’s why she was able to be so effective.
HK: [00:26:45] Should I tell the Star Athletica story?
BN: [00:26:49] Sure.
PRL: Yes, I do.
BN: [00:26:52] And I think one of the things I’m sorry, can I just say before Hajin says this. It’s like one of the things that has helped us over the past few days. And, you know, you may not want to use any of this material, but we have very much enjoyed sharing stories with each other of times that the justice sort of demonstrated the justice’s sense of humor, like she was very funny. And also the times that we got to see her laugh, which were like the most gratifying thing ever.
[00:27:20] But anyway, so with that now.
HK: I feel like we should check we should share some of the other things that we’ve talked about. So what did that at, say, one case, that term was Star Athletica. It’s a copyright case about cheerleading uniforms. And we actually had no idea she was going to do this, and we only heard about it from other clerks around the building. She went to conference with pompoms. I think we are all coming back from something. And some of the clerks were like, oh, my gosh, did you hear what your boss did? And we were like, what? It was so great. But, yeah, she just she always had, like, a good sense of humor.
AH: [00:27:58] I love hearing those because they really, you know, her public persona… There was there was the Notorious RBG, but then her public persona, you know, she was kind of quiet and reserved. And so it’s so much fun to hear these stories.
HK: [00:28:16] Oh, my gosh, somebody has to tell the story because I’m terrible at stories. But somebody needs to tell the Duchess of Krakenthorp story because that was right after the election. We were like in the worst of spirits.
SI: [00:28:28] All right, so so relatively early in our term, probably in October, we got wind of the fact that the justice would be performing that season at the Kennedy Center and we were very excited, we didn’t think we’d really have the opportunity to go, and then the justice invited us one day to come see her at the dress rehearsal, which did not feel like a dress rehearsal at all because the Kennedy Center was packed. She played the role. I honestly could tell you so little about any other aspect of that performance except that she was the Duchess of Krakenthorp.
[00:29:15] All right. So she comes out and proceeds to deliver a monologue. It was not a singing part. I think she herself is very grateful for that, and it contained in it all of these subtle or not so subtle digs that the political world—and the performance was in the same week as Election Day was—so I think for that entire audience, it was this moment of incredible comedic relief. I know that our spirits were definitely lifted.
Ruth Bader Ginsburg: [00:29:48] Dropping traditions that have worked and continue to work is like throwing away your umbrella in a rainstorm because you are not getting wet.
[00:30:02] We will resume when you, Marie, and the birth certificate are all here.
PRL: [00:30:28] Can’t follow that. Certainly, I remember one other time in this kind of goes to the theatrical element and Justice Ginsburg’s ability to find humor, even in the small things. And this goes to what you were saying, Amy, in terms of the perception publicly that she was very reserved and serious. And you may remember there after President Trump had fired James Comey and it was a surprise to many people and Sean Spicer among them. And then he was accosted, I think, on the grounds of the White House lawn and he hid in the bushes. Well, this was this was one image that I guess had not made it to Justice Ginsburg. So we just we thought the image was theatrical and funny and we shared it with her and some of the memes that had been posted online. And it just the sheer imagery of it. She just thought it was hilarious. And it was one of the times that we saw her laugh quite hard. And there was a moment of levity, I think, in an otherwise rather serious term at times.
SI: [00:31:34] There were quite a few times I think that we successfully made her laugh. We’ve gone through the chronicle of this, though, and I think that’s the only story that we can actually share. But we did every once in a while to get her to laugh. And it was it was always a big victory for the clerk who got her to crack up, because, I mean, when she when she started laughing, she would laugh for a little while. It was great.
BN: [00:31:58] It was the best thing ever to hear her laugh. It was it was so wonderful. They are among my favorite memories. One night when I was working late, perhaps on an opinion or something with her, I was in a different part of chambers, but I could hear her laughing down the hall in her office, and the door was open. So, I quietly walked down the hall to see what she was up to and peeked in her office to see her giggling while watching an SNL skit of herself. Of them doing RBG. It was great. It’s like one o’clock in the morning, and she was enjoying, I think, you know, a bit of comedic relief herself, undoubtedly after a long day of work, although, let’s face it, one o’clock in the morning, it’s pretty early for her.
[00:32:50] She was probably heading home to put another three or four hours in.
AH: [00:32:53] Amazing. All right, Beth Parker, Hajin, Subash, thanks so much for sharing your memories with us. That’s another episode of SCOTUStalk.
[00:33:02] Thanks for joining us. Thanks to Casetext, our sponsor, and to our production team Katie Barlow, Katie Bart, Kal Golde, and James Romoser.