Q&A with Professor Margaret Russell On Justice Ruth Bader Ginsburg
By Colan Mackenzie
Justice Ginsburg in 2016. Source: Supreme Court of the United States.
Professor Margaret Russell has been teaching Constitutional Law at Santa Clara University School of Law since 1990 and has followed Justice Ruth Bader Ginsburg’s impactful legacy while on the Supreme Court.
Q:Would you tell me about Ruth Bader Ginsburg, her legacy, and her legal career?
A: When Ruth Bader Ginsburg was a lawyer in the 70s and working with the ACLU, she developed a couple of cases that have to do with the role of gender/sex in the equal protection clause of the 14th and 5th amendments. It's incredibly important because the language of the 14th and 5th amendment just says “person.” It doesn't say woman. But the history of the 14th Amendment, the Civil War, meant that the original construction and history of it was to afford equal protection and due process to the newly freed slaves, which obviously has not yet happened fully. But what Ruth Bader Ginsburg did in her arguments was to say that the word “person” means women as well and that treating women in a way different from men without a very, very strong justification by the government is simply wrong. Whether you're patronizing women by putting them on a pedestal and saying they could, they can't work more than men do, or whether you're degrading them by taking away their rights to be on juries and not affording them a right to vote. Either way, it's discrimination that is fully covered under the equal protection and due process clauses. She did that in a couple of cases, Frontiero v. Richardson and Craig v. Boren, that finally resulted in what's called a mid-level or intermediate level of scrutiny in terms of judicial review.
When she was on the Court, one of her first big decisions was about the all-male policy at the Virginia Military Institute, and just as she had as an advocate, as the justice writing the lead opinion saying that the Virginia Military Institute had to get rid of its all-male policy. She developed, very forcefully, the argument that one cannot, and certainly the government cannot, present that women are so different from men that they should be treated differently in military education as well as in a host of other contexts. So I think she really flipped the perception in away from the perception from when she was going to school that “oh, you treat women differently from men” to now I think the perception under laws that you do not, unless you have a very strong justification.
Q: So would you say that Frontiero v. Richardson and Craig v. Boren are the two most important cases she was involved in? What are some others?
A: Well when she was litigating before the Supreme Court, I would say Frontiero was a very important one because she argued for the highest level of scrutiny as an advocate in that case. And Craig v. Boren was the case that ultimately settled on the so-called intermediate scrutiny. Then when she went to the Supreme Court, The US v. Virginia opinion that she actually authored and had so much of her voice was, to me, the most important case. She also had a very strong voice as a dissenter and a lot of her reputation in high profile cases like Citizens United about campaign finance and the Lilly Ledbetter case she dissented in and then there wound up being a law Congress passed afterwards to correct the decision in that case. Those really show the uniqueness of her view. Mostly on gender equality, which is her greatest contribution as a lawyer and as a woman and as a Supreme Court Justice.
Q: Did Ruth Bader Ginsburg have any other significant impact on the legal profession?
A: It is the fact that she acquired this rockstar, Notorious R.B.G. following. I just had this nerdy, law professor way of admiring her and for me to see a whole younger generation give her that nickname. Someone just sent me her workout calendar as a present. Because apparently her trainer who trained her all the time, until pretty much the end of her life and now I have a desk calendar that has all her workouts. So she has this whole persona now that is in popular culture which I love. You know, movies made about her. Perfect!
Q: There are a significant number of people who feel like Justice Ginsburg needed to retire when the Democrats controlled both houses of Congress under President Obama and that, by not retiring, she inadvertently put her legacy and the rights and lives of millions of people at risk. What's your take on that?
A: What those critics are saying may very well be true, factually, but I do not fault her for that. I think that age is one indication of how long someone is going to last but you know, disease isn't. And cancer isn't. And heart attacks aren't, and so the fact that people think “Oh well, you know she should have recognized that. No, she should just stop this career where she's like working really hard all the time and enjoying it and inspiring people.” That's a little harsh to judge her for that. Even though it's factually true that if she had resigned, let's hope you know Obama would have gotten another nominee in the court.
Q: With the election soon and the significant amount of criticism for their views and qualifications. What do you think about this about this nomination process being so fast paced?
A: It's appalling and the main reason why that is so has to do with the Republican’s own actions when Merrick Garland was nominated. I don't think there is sort of one ironclad rule of when or if in an election year the sitting president gets to nominate somebody. I mean, there are differences of opinion, but they were so clear in their argents, that is Mitch McConnell and the Republican leadership, about why they wouldn't even meet with Merrick Garland. And for somebody who teaches checks and balances and the constitution, for me to see how that was just cast aside as a political ploy is appalling. Because I think it does shake the foundations of a belief in checks and balances, when you see people behaving that cynically. So that's really my main objection. Now, as far as nominating her, it's not a surprise and it is very political. I was just out of law school when the Federalist Society started, so I remember it from the beginning and I remember that goals were to have an influence eventually on who sat on the federal courts that is sort of the list and the place that made sure that she was positioned to get this nomination. There's no secret about that. The hearings, to me, almost didn't matter because it's been a long time since any nominee has really been very forthcoming in hearings. But for anybody to doubt what her ideological predispositions are is naïve.
The fact that it's you know not only is it late, but it's October! Here comes the vote, you know, I just think it increases the shock value of it.
Q: One of the arguments that Republicans have made is that this is a particularly contentious election and the possibility that there's a legal challenge to the results of whatever happens in November is one of the reasons why they want to have a full Supreme Court. What are your thoughts on that?
A: It's very troubling, as I said before, you know, in terms of the ones faith being shaken in terms of just belief in sort of principles of constitutional structure and checks and balances. It is very concerning that, during the hearings, Judge Barrett would not really comment or or commit in any way to recuse herself or to say anything about whether or not it would be appropriate for her to be judging the results of the election. And, you know, as I said, I guess it's not surprising given how nominees really try to skate. But I think you can look at President Trump and see that he said that that's what he hopes. So there's no secret about that, and that's very disheartening.
It's interesting, I was just doing an interview about the army of poll watchers that Trump has said go to the polls and watch and what I said there, which also applies here, is that we don't really have to guess what the motivations are. I mean, the reason why Trump wants an army of poll watchers to show up is to increase his chance of winning, not to be transparent about having a fair election. And I think the same is true that you know he's already sort of almost crowing about it. Like, “Oh, I hope that the courts get to decide it!” That's so ignorant of the role of the judiciary, first of all, but also to just basically tilt his hand and say, “Oh I'm going to have one more justice that I really hope is going to make sure I win the election.” Let's just say that people like me, constitutional law professors who have loved teaching this topic for a long time, I think a lot of us are kind of shaking our heads, each other thinking “This does not look good, it just does not look good for the rule of law.”
I'm sorry, I hate to sound so depressing! Yeah, it's serious, but you know the one big benefit is that there's a younger generation that's going to clean this up.
Q: One of the big concerns regarding Amy Coney Barrett being on the bench as Ruth Bader Ginsberg’s replacement in particular, but just in the bench in general is her publicly stated disdain for abortion and Roe v. Wade. So how soon could the Supreme Court hear another abortion case?
A: There are cases working their way through the courts that, as previous cases did about abortion restrictions, they don't directly ask the court to overrule Roe necessarily, but what they do is put before the court restrictions that, under the Planned Parenthood v. Casey case, are thought by pro-choice advocates to be undue burdens on the right to privacy and the right to choose an abortion. Then the argument becomes “is this enough of a restriction? Is it too much of a restriction? How do you balance it against the right of the woman and a right to privacy?” And so what I think could happen very soon actually is, is that the underpinning of Roe v. Wade, the notion that there's a right to privacy that is not by its words in the original text of the Bill of Rights, is nevertheless being challenged here. And I think that Amy Coney Barrett's originalism like others on the court, and like Scalia's, will get directly at that. They will just say the reason why is not because of “abortion,” it's be cause the right the right to privacy is a made up constitutional right. I think that's the originalist approach to getting rid of Roe.
Q: If there is a significant challenge to a right to privacy, what other other consequences do you think that could have?
A: Well, I think in terms of what it would directly affect, you would trace it back to the Griswold contraception decision, and abortion, and, you know, I really think the question that a woman chooses
her destiny, essentially chooses her life rather than the government doing it, so that's big. But in terms of this originalism debate I think that the approach used to really interpret this penumbral right to privacy will be manifested in other areas. So take marriage equality, right? So that's not the right to privacy, but it involved what the court majority said was an irrational distinction in the government's role in marriage to deny same gender couples the right to marry.
I think the court could just as easily say, “oh, marriage is a historical institution and it was just sort of making up new rights, I think the majority would say, to create marriage equality.” And the right to privacy, you know was at issue in the gay rights cases that you know had to do with striking down sodomy laws.
Q: Because of her originalist viewpoint, Judge Barrett is likely to strike down any sort of judicially created laws, but one of these is qualified immunity for the police. So how do you think a new court with her on the bench would rule on a case regarding qualified immunity?
A: I'm going to sound like her because she shall say “I can't answer based on just a hypothetical set of facts.” But I think that, in terms of originalism, it's interesting. Scalia's originalist approach was actually kind of quite defendant respectful in the 6th amendment or right to confrontation. So it may be that Amy Coney Barrett and others would think it's an originalist approach to chip away at qualified immunity. But because the historical pedigree of it is so great there are the originalists on the court that really bow deeply to historical pedigree in what they do accept that's not in the text of the constitution.
That's quite possible.
Q: If Judge Barrett was to be appointed to the supreme court, who do you think would be the new swing justice?
A: It's like musical chairs, like move to the left, to the left. In some cases, Roberts perhaps. Gorsuch has been a surprise in some cases, but I think that it would be Roberts, who has a reputation for wanting to preserve the legitimacy of the court, such as it is. So he probably would be. And a court in which Roberts is the swing justice, that's moved. That's moved to the right.
Q: A lot of people, I think, who aren't even familiar with the court and or have time to read opinions, people who are not the legal community, understand what originalism is. It gets discussed a lot in public circles.
A: Well the first reason I think that I question originalism is simply because the constitution was a document with important principles but limited by the worldviews of the white male property owners at the time. And what that means, I think, is that instead of seeing it as Judicial legislating, which I think Scalia and originalists would call a more liberal court, instead of seeing it that I think it has to involve that institutions, there's nothing set in stone in the sense that we understand what the framers would have meant if they lived today. I think it's important to take into account the evolution of law overtime. So I think that's one big reason. Why don't I understand the excessive respect I think is given to originalism. And then the second reason is even originalism could take you in very different directions. So it doesn't answer the question and the case that I think most exemplifies that is the DC v. Heller Second Amendment case. In which, if you read the majority and the dissent, they both rely on originalism and interpretation, but they are diametrically opposed interpretations of the language of the 2nd amendment. So you know it's not as though, “oh well, let's just put it in the original is the originalism machine and will get the right answer.” It's just a tool, it's just one of other judicial interpretive techniques.
Q: How does one justify an originalist reading when you know a lot of the mechanisms set in place to amend the constitution imply that it is supposed to evolve and change?
A: I think the originalist answer is: “If things are meant to evolve and change, then you amend the constitution. But you don't, for example, infer a right to privacy. If you want a right to privacy, you amend the constitution.” And in fact California did have a voter passed amendment to its constitution, and so there is a right to privacy. So I think the originalists' argument would be “well see, don't don't read things into it that we don't think are there. Amend the constitution.”
Q: Do you think it will be possible for Judge Barrett to carry out the duties of a Supreme Court Justice separate from her religious beliefs? Beliefs framed by what some have described as fundamentalist Catholic cult, the “People of Praise.”
A: You mean, do I subscribe to the view that her religious beliefs are going to just drive everything? I think that when she says, or when she said at the hearings, that she understands the role of precedent and that certain things are called super precedent and that her religious beliefs will not be the reason why she would overrule a case I think she's telling the truth.
But here's where I think the mode of judicial interpretation comes in and questions that she really did not answer satisfactorily. So OK, so let's say she says I respect precedent: Roe or Casey. My religious beliefs are going to be over here and here I am deciding this case. I think it's entirely possible and consistent with the Federalist Society approach that she would look at the law and she'd say Roe defined a liberty interest and a right to privacy from this language of the 14th amendment, 9th amendment. And she would say that's wrong. She wouldn't say, “oh, God's telling me to overrule this case.” I think she would actually say, “well, this is wrong.” And the reason why she is such a powerful nominee to the people who put her name forward, you know not just Trump, but all the money and the influence behind her, is because she's a convergence of those two. She has the training and intelligence to justify overruling precedent simply by talking about the law. But she also has the belief system that would help lead her in that direction.
Q: Is there anything you feel like we didn’t go over but you would like to mention?
A: I really want to acknowledge the difficulty of the era in which we live right now for people to be studying law and commit to pursuing using the law for good. For lots of reasons, like COVID and the rise of white supremacy--it's shocking where this country is. And this is really just such a decline of real human empathy and compassion, but it will get better. So I do want to say that you know there is a light at the end of the tunnel and you know you can be part of the change. It's a noble thing to do.
(Editor's Note: This article was originally published in the October 2020 [Volume 51, Issue 1] edition of The Advocate.)