SCOTUStalk

The Supreme Court will hear argument Tuesday in one of the term’s biggest blockbusters: California v. Texas, the constitutional challenge to the Affordable Care Act. A group of Republican-governed states say the law’s individual insurance mandate is unconstitutional – and they are asking the court to strike down the entire law along with the mandate. Lydia Wheeler, a senior legal reporter for Bloomberg Law, sits down with SCOTUStalk host Amy Howe to preview the case and discuss how the three newbies on the bench – Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – may approach the constitutionality of the mandate and the legal doctrine known as severability.

Are we headed for another Bush v. Gore? What would that case even look like in 2020? What is happening with all of the coronavirus-related litigation coming up to the Supreme Court right now?With less than a week to go before the 2020 election, SCOTUStalk host Amy Howe talks to election law expert and Ohio State University constitutional law professor Edward Foley about these questions and more. To follow all the latest developments on important election disputes that may reach (or have already reached) the Supreme Court, visit our Election Litigation Tracker, a joint project of SCOTUSblog and Election Law at Ohio State.

Amid an ongoing pandemic, the recent death of Justice Ruth Bader Ginsburg and a looming confirmation battle, the eight justices of the Supreme Court began a new term last Monday. SCOTUStalk host Amy Howe sits down with SCOTUSblog media editor Katie Barlow to discuss the first week of the term, including an apparent procedural tweak to telephonic oral arguments and which justice is now handling emergency appeals from the U.S. Court of Appeals for the 2nd Circuit (Ginsburg had been the "circuit justice" for the 2nd Circuit).

Who is Judge Amy Coney Barrett and what’s next for her confirmation battle? Amy Howe answers these questions and more on this week’s episode of SCOTUStalk. Amy sits down with SCOTUSblog media editor Katie Barlow to discuss the significance of President Donald Trump’s third nomination to the court, what the truncated confirmation timeline will be like, and what hot-button issues she would face as the court’s newest justice.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] On Saturday, President Donald Trump announced that he was nominating Judge Amy Coney Barrett to fill the vacancy created by the death of Justice Ruth Bader Ginsburg. What does Barrett's nomination mean for the Supreme Court, which is scheduled to begin its new term on Monday, October 5th? Joining me to suss this out is Katie Barlow, SCOTUSblog's media editor. Katie, thanks for joining me. Let's go ahead and dive in.Katie Barlow: [00:00:37] Now that we know who President Trump's nominee is, then we can start to dig into her background and some of the opinions that she's written. It's easy to get into the weeds, but let's zoom out to ten thousand feet for a second and just talk about what is the significance of this nomination and what could it mean?AH: [00:00:58] So if Amy Coney Barrett turns out to be a justice in the mold of Justice Antonin Scalia, for whom she clerked and whose jurisprudence she says she emulates, it really could be a seismic shift on the court. Many of the Supreme Court's recent decisions on the sort of hot button social issues of the day have been five, four decisions. And many of the decisions in which the justices have reached what many would consider to be a liberal result have been because the either the chief justice or before him, Justice Anthony Kennedy, joined the court's four more liberal justices. And now that group of four more liberal justices is down would be down to three, because Justice Ruth Bader Ginsburg, who passed away last week, was one of the most reliably liberal justices on the court. And so, you'd have three liberal justices and a really solid majority of six conservative justices.[00:02:01] And so it wouldn't really so much matter anymore if one of the conservative justices peeled off to vote for with the liberal justices because there would still be a very solid majority of five conservative justices. And so this could affect all kinds of issues like abortion, affirmative action, gun rights, you name it.KB: [00:02:21] All right. So, having taken that wider lens view, now let's zoom back in. And who is Amy Coney Barrett? What do we know about her? Who is she?[00:02:32] So we know quite a lot. She is a forty-eight-year-old judge on the US Court of Appeals for the 7th Circuit, which is based in Chicago. She grew up in Louisiana, went to law school at Notre Dame, where she was a top student before coming to Washington, first a clerk on the D.C. Circuit and then to clerk on the Supreme Court for Justice Scalia. She stayed in Washington for a couple of years to practice law, starting at a law firm called Miller Cassidy, which was a boutique law firm and really was one of the hardest jobs to get in Washington as a young law student at the time. So ,she stayed there for a couple of years and then she went back to Notre Dame to teach as a law professor there for 15 years before becoming a federal judge in 2017. While she was at Notre Dame, she won teaching awards. She had very broad support from the faculty and her students when she was nominated by President Trump to serve on the Court of Appeals in 2017.KB: [00:03:30] We heard at the nomination ceremony yesterday how excited the conservatives were.[00:03:35] I mean, there was an uproar of applause. Why are they so excited about her nomination?AH: [00:03:41] So she has said that she is in terms of her judicial philosophy and originalist and textualist. And so an originalist is someone who interprets the Constitution according to what the words meant to the people who drafted them when it was drafted back in the 1780s. And a textualist. When you're interpreting the law, you look at the words on the page. You don't go looking at what Congress might have intended to do when it passed the law. And really, almost anyone whom the president nominated probably would have said that. But, Amy Coney Barrett really became a heroine to social conservatives at her 2017 confirmation hearing. There were a lot of questions about the extent to which her Catholic faith might influence her judging. And there was a famous moment in which Senator Dianne Feinstein of California said to her, “The dogma lives loudly within you.” And it really sort of went viral, I think, among social conservatives. There were mugs and T-shirts printed with that. It probably had the opposite effect from what Feinstein had intended. And so I think that the social conservatives, conservatives believe that she's going to be like her old boss, Justice Scalia, on important social issues. She signed a statement of protest while she was at Notre Dame criticizing the accommodations that the Obama administration had created for religious employers, for example, who would have otherwise needed to comply with the Affordable Care Act's birth control mandate. Religious employers had argued that even the workaround that the Obama administration had created still violated their religious rights by making them complicit in providing birth control to their female employees. And the president had promised while he was running for president back in twenty sixteen that he was going to appoint judges who would vote to overturn Roe versus Wade. And they probably believe she's likely to vote to do that in her votes in a couple of cases on the bench while she's been on the 7th Circuit, or at least suggest they were.[00:05:46] There's a little bit of nuance in the sense that these were votes on whether or not the full 7th Circuit should rehear cases in which a three-judge panel had struck down Indiana laws regulating abortion. But those votes suggest that she supported those laws in Indiana regulating abortion.KB: [00:06:06] So you mentioned her abortion related decisions, not written opinions, but her votes in cases to rehear en banc. And it's interesting because she spent three years on the 7th Circuit before her nomination, whereas her fellow Trump appointee colleagues, if she gets confirmed, Justices Gorsuch and Kavanaugh spent nearly 10 years each in their respective federal judgeships on the 10th Circuit and the D.C. Circuit.[00:06:34] And in fact, hot button issues like abortion didn't come up for Justice Gorsuch, who was able to avoid those types of decisions in his nearly decade on the 10th Circuit. And she's going to have more than just abortion come up. She's written opinions already on things like gun rights and immigration and sexual assault on college campuses. So, what do you think is going to come up based on the opinions that you've looked at already? You've written about them. SCOTUSblog has started to delve into them. In fact, we have all nearly one hundred of her opinions on our website if anybody wants to look at them. But what do you think is going to be top priority out of her opinions in the Judiciary Committee hearing?AH: [00:07:16] So, yes, I think it's a great point about Justices Gorsuch and Kavanaugh. We were left to sort of pass his book about euthanasia, which arose out of his Ph.D. dissertation to try and figure out what that might mean for his views on abortion, because I don't think it had come up at all while he was on the bench.[00:07:39] I think certainly the Affordable Care Act is something that is going to be top of mind for Democrats at the confirmation hearing. She was quite critical of the chief justice's vote, his decision to uphold the individual mandate.[00:07:54] She really was very skeptical about it. And the Affordable Care Act and the individual mandate are going to be back at the Supreme Court on November 10th. And I think we may talk a little bit more about the timeline, but it's certainly something that she could very well be on the bench to hear oral argument in. And so that is something I think that they're likely to address. I think abortion is certainly going to be something that they're going to address. Gun rights in 2019, she dissented from a ruling in which the majority on a three-judge panel rejected the argument that a federal law, state law that barred people who've been convicted of felonies from having guns violates the Second Amendment right to bear arms. She dissented. She said, you really have to look at this on a case-by-case basis. This guy had been convicted of mail fraud and at the time of the country's founding, legislatures looked at whether or not someone was likely to be dangerous before they took away his gun rights. And the implication was this guy is not dangerous. And she said the Second Amendment confers an individual right. I think everyone believes that if she were confirmed, which seems at this point likely that she's likely to take a broader reading of the Second Amendment. I think, as you mentioned, there's a case in which she wrote for a three-judge panel that reinstated a lawsuit brought against Purdue University by a student who had been found guilty of sexual assault through the university's student discipline program.[00:09:27] One expert on university compliance with the federal laws barring gender discrimination in education said that this opinion was a trendsetter. He called it that would make it easier for students to bring these kinds of lawsuits against universities to trial.KB: [00:09:43] All of those things are obviously reflective of what is concerning liberals at the moment. Democrats circulated a memo already outlining 19 potential delay tactics for this nomination. But is it more than just those opinions? What is so concerning to the left right now?AH: [00:10:03] I think there is I think there's a couple of things going on, I mean, I think there there is this sense that she will be like her old boss, Justice Scalia, and could well be once she's on the bench, kind of a thought leader, in the same way that Justice Scalia was. I mean, I think there's also the element, the liberals, both because of what's at stake generally and then because of the process, the idea that back in 2016 Republicans refused to fill the vacancy when President Obama was nearing the end of his second term, but are now filling a vacancy when President Trump's is up for reelection and election is looming so large, that this is just wrong. I think they certainly would have opposed whoever the president would have nominated. It's almost unimaginable that he would nominate someone who would be acceptable both to his base and to Democrats. I think Barack Obama tried that. It didn't go so well. And now she does have, unlike some of the other judges who were reportedly in the mix as potential nominees, this long paper trail on issues that they can point to.KB: [00:11:23] So we kind of got our first national public glimpse of her beyond her, her judiciary hearing for the 7th Circuit, which was interesting, but I'm not sure the entire nation was watching in the same way as they were watching the ceremony in the Rose Garden when President Trump nominated her, and she spoke after he gave his speech, officially nominating her. Talk a little bit about what she said when she spoke in the Rose Garden. What did she say to us and to the country?AH: [00:11:51] It was only eight minutes. We'll see a lot more of her. At the confirmation hearing. She said some of the things you'd expect. You know, that she was deeply honored. She was truly humbled. She paid tribute to Justice Ruth Bader Ginsburg. She observed that this was all happening very quickly, that the flags were still flying at half-staff. She talked about her family. She's the mother of seven children and her husband. And she really tried to address some of the divisions in the country, particularly when it came to her nomination. She talked about Justice Ginsburg as a pioneer, but she also talked about Justice Ginsburg's friendship with Justice Scalia. And she said they disagreed fiercely in print, but they always got along in person. And, you know, maybe she seemed to me to be alluding to the controversy over her Catholic faith and what role that might play in her judging. And she said the Supreme Court belongs to all of us and she pledged to be impartial.KB: [00:12:47] It's been a bit of a long road to get to her nomination. She had been circulating in conversations about potential nominees. She was in the conversation for when Justice Kavanaugh was nominated.[00:13:03] Can you talk a little bit about the road to this nomination, the short list, the multiple short lists, including one we got not so very long ago, and other finalists that were considered.AH: [00:13:15] So the president back in twenty sixteen when he was running for president, released a list of potential nominees. And he said, if I'm elected and there's a vacancy, I will draw from this list. The list was a big success, really, I think sort of upped his credibility with conservatives and particularly with religious conservatives who been somewhat skeptical about him, whether he was really one of them, so to speak. Remember, there are videos circulating like a clip of him on Meet the Press with the late Tim Russert saying, you know, “I'm very pro-choice.” And so I think this helped to reassure them before the election that if he were elected, he would pick a conservative, because at that point there was the opening created by the death of Justice Scalia. And then he added to the list. Again Justice Kavanaugh was added to the list later on so that he was on the list of potential nominees by the time Justice Anthony Kennedy retired in 2018. And then just recently, President Trump released a new list of potential nominees that was added to the old list. And among the people on that list was a judge in Florida named Barbara Lagoa, who's on the US Court of Appeals for the 11th Circuit and a judge on the US Court of Appeals for the 4th Circuit, Alison Jones Rushing, who's quite young, she's only 38 years old and has been on the bench for about a year and a half. And Justice Ginsburg passed away on Friday, and the president made his announcement the following Saturday. But after Justice Kennedy's retirement, as you as you mentioned, Judge Barrett was by all accounts, on the short list for that vacancy. And there was reporting by Axios after the vacancy was filled by now Justice Brett Kavanaugh, that Trump had told his advisers that he was saving a Amy Coney Barrett in case Justice Ginsburg were to leave the court during his presidency.[00:15:18] And so it all moved very quickly after Justice Ginsburg passed away, eight days before the nomination was made. But you had the sense, I don't know that anyone knew inside the White House or even outside her close circle of friends sort of how she was doing. But there had been reports about her health problems. And I imagine that inside the White House, they were prepared to be ready, at least for a vacancy on the Supreme Court. There hasn't been any reporting yet, but it's not clear whether or not anyone else was ever seriously in the mix besides Amy Coney Barrett. Judge Lagoa, there was there was a lot of political upside to nominating her. She was the first Hispanic woman and the first Cuban-American woman on the Florida Supreme Court. Obviously, there's an upcoming election. Florida's got a lot of electoral votes and she's very well regarded in conservative circles but doesn't necessarily have the conservative track record that Amy Coney Barrett has yet. Jeremy Diamond of CNN reported that at a fundraiser in Florida just in the last couple of days, that the president told Florida leaders that if he's re-elected, and there's another vacancy, that judge Lagoa would definitely be in the mix. Alison Jones Rushing, as I mentioned, is only 38. She's only been on the court of appeals for about a year and a half. And so, although I don't think anyone would question her academic credentials to be on the court, she may just not be quite seasoned enough as a judge to be on the Supreme Court yet.KB: [00:17:00] So now that she has been thrown into the fire, so to speak, both she and the Senate Judiciary Committee have to work quickly.[00:17:10] We're expecting hearings to begin the week of October 12th, which is in two weeks. And typically, that process takes about six weeks from nomination to hearing.[00:17:19] So talk a little bit about what happens next, how quickly that's going to happen, what the timeline is going to look like. Clearly, multiple things are going to be happening at once.AH: [00:17:27] Sure. I mean, you know, there's no requirement, obviously, that they work quickly. Obviously, it sounds like the president wants to get her on the Supreme Court before the election for a variety of reasons. And having done that, then they would have to work quickly because there were 38 days from Saturday when the president made the nomination until Election Day. So the hearings are scheduled for October 12th. Senator Lindsey Graham has said that they would like to have Judge Barrett's nomination clear the committee, the Senate Judiciary Committee, by October 26th to set up a vote before the election. So it is certainly much faster than most Supreme Court nominations move. I've seen reporting that some Democratic senators have said that they don't intend to meet with Judge Barrett. Normally, a nominee will come to Washington if they're not already there and do a round of courtesy visits with different senators to sort of get to know them a little bit, talk a little bit about judging in advance of the Senate Judiciary Committee. So that will save Judge Barrett a little bit of time, I guess, if she's not meeting with all of the senators.KB: [00:18:36] Right. A lot of people got the short end of the stick here, but I mostly feel sorry for everyone in the Supreme Court press corps because they had last term go over and had to go into the summer. It's been an incredibly busy summer with election litigation and other things. And now not only is the term starting in a week with some major cases, but you guys will have a simultaneous coverage of a nomination confirmation, not just a normal one, one that's happening extremely quickly at the same time.AH: [00:19:05] I don't feel sorry for the people that feel sorry for the people in the Supreme Court's public information office. They are the ones working overtime.KB: [00:19:13] Right. I feel sorry for them, too. There's a lot ahead. What are your thoughts? Can she can she be confirmed before the election?AH: [00:19:20] I mean, it sounds like they intend to do it. It would be much faster than most confirmations. As I said, it was 38 days between Saturday when the president nominated Judge Barrett and Election Day. Justice Ginsburg's confirmation process was relatively quick. Hers was 50 days. Justice Gorsuch, nd this was a situation in which Justice Scalia's seat had been vacant for quite a while. So I think there was a little bit of a pressure to fill it. His was 66 days. The average has been around 70 days. I mean, there's nothing magic about the election, even if, as the president has suggested, he wants to have someone on the Supreme Court to deal with any election related litigation. That election related litigation is not going to magically arrive at the Supreme Court on November 4th. It would take a while to bubble up through the lower courts and arrive at the Supreme Court, but they've obviously made a decision that they would like to try and do it. And I think it's one of those things where you have to borrow an old cliché, if there's a will, there's a way. KB: And there's certainly there's certainly a will, so it seems. So you mentioned potential election litigation. But putting that aside, what are the cases coming up which her nomination and confirmation could make a difference? What's on the docket already, short term and longer term.AH: [00:20:44] So in the short term, this and this could be a reason why they want to have her on the bench, certainly, putting aside the election related litigation. On November 4th, the Supreme Court will hear oral arguments in a case called Fulton vs. City of Philadelphia. And this is about the balance between religious beliefs and anti-discrimination laws and in particular, anti-discrimination laws that protect LGBTQ people. It's sort of a slightly different version of the Masterpiece Cake Shop case that the Supreme Court heard a couple of years ago. That was the case of the Colorado baker who did not want to make a cake for a same sex wedding celebration. This is a lawsuit brought against the City of Philadelphia by Catholic Social Services. Catholic Social Services has a policy of not working with foster care parents who are same sex couples because of the agency's religious beliefs. And as a result, the City of Philadelphia has a policy of not working with Catholic Social Services. And Catholic Social Services says that violates its religious beliefs. The Supreme Court had a hard time with the Masterpiece Cake Shop case back in 2018 while Justice Kennedy was still on the bench. They sort of dealt with it very narrowly. They ruled in favor of the baker, but on the ground that the Colorado administrative agency that had ruled against him had been unfair to him because of his religious beliefs. They didn't issue some sort of broader constitutional pronouncement. So it's not clear whether the Supreme Court will do that this time.[00:22:20] But there may be more likely to be five votes for some sort of broader constitutional rule with a Justice Barrett on the bench. And then the big one on November 10th is the battle over the Affordable Care Act. Whether or not the Affordable Care Act's individual mandate, the requirement that all Americans buy health insurance or pay a penalty is constitutional now that Congress has taken away, in essence, the penalty for failing to get health insurance. And so there's a couple of different questions in that case. Back in 2012, Chief Justice John Roberts joined the court's former liberal justices in saying that the mandate was constitutional because it's a tax. But even if there were no longer five votes for the proposition that it is still constitutional, there's a separate question. And then what happens? Is it just that the mandate is no longer a part of the Affordable Care Act? Or does some or all of the Affordable Care Act go with it? And then looking further down the road, it seems very likely that the Supreme Court is going to have to deal with issues relating to abortion. Affirmative action, acouple of weeks ago, the US Court of Appeals for the 1st Circuit heard oral argument in the challenge to Harvard's admissions policies. The argument is that Harvard is discriminating against Asian-Americans in its admissions policies. Back in 2016, Justice Anthony Kennedy joined the court's three liberal justices because Justice Kagan was recused. So the vote was four to three to uphold the University of Texas’ admissions policy.[00:24:00] But that was then. This is now. There's been quite a change in the composition of the court. And then gun rights. In 2019, in December, the Supreme Court heard a challenge to a New York City rule that banned people who live in New York City and have a license to have a gun from taking their guns outside of New York City. But then they dismissed that case as moot. There is no longer a live controversy, just as Brett Kavanaugh suggested that perhaps the court should take up another case to say more about how broadly the Second Amendment applies, because the Supreme Court has said there is a Second Amendment right to have a gun in your home for self-defense, but really hasn't said much more than that in about 10 years. But the Supreme Court didn't do that. They had an opportunity to do that with a whole group of cases right after the New York case. And the conventional wisdom, for what it's worth, is that there would be four conservative votes on the Supreme Court to take up a Second Amendment case, but that they hadn't done so because they're not sure about what Chief Justice John Roberts would do in such a case. And so to sort of take this and project, if Justice Amy Coney Barrett were on the bench, there may well be five votes to take up a Second Amendment case and say more about what the Second Amendment protects.KB: [00:25:26] All right. Well, it sounds like there's a lot in the long-term future, but for now, we have the nomination and confirmation process to focus on.[00:25:34] And as always, Amy, thank you for sharing your knowledge with us.[00:25:38] We always learn something. We're grateful.AH: [00:25:40] Thank you. We'll be back to talk about it soon. I imagine there's going to be plenty more in the weeks ahead.[00:25:47] That's another episode of SCOTUStalk.[00:25:49] Thanks for joining us. Thanks to Casetext, our sponsor, and to our production team Katie Barlow, Katie Bart, Kal Golde, and James Romoser.

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.

SCOTUStalk Host Amy Howe spoke this week with two groups of former law clerks for the late Justice Ruth Bader Ginsburg. In the first of these interviews, Kelsi Brown Corkran, Lori Alvino McGill, and Amanda Tyler share their memories of meeting Ginsburg for the time and working for a boss who herself was such a hard worker.Full Transcript:[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. Thanks for joining us. Members of the public generally knew her as the Notorious RBG or as a tiny but mighty figure in the courtroom. For her law clerks, though, Ginsburg was a warm and thoughtful role model and mentor. We're so lucky to have three of her law clerks with us to talk about the time they spent working with Ginsburg as well as their relationships with her after they finished their clerkships. Kelsi Brown Corkran is the head of the Supreme Court practice at Orrick, Herrington and Sutcliffe. Lori Alvino McGill is an appellate lawyer who clerked for Justice Ginsburg during the October term, 2005. And Amanda Tyler is the Shannon Cecil Turner professor of law at the University of California, Berkeley School of Law.Let's start at the beginning. Talk about how you came to be a clerk for Justice Ginsburg. What was the interview process like? You're all relatively young lawyers going to talk to Justice Ginsburg, who was not much of a small talker. What was the interview like?Kelsi Brown Corkran: Yeah, so I was actually a little bit older. I was pregnant with my son when I clerked for Judge Tatel on the D.C. Circuit.So I waited until after my kids were born before I applied to clerk on the court. It's pretty well documented that when Justice Ginsburg was recommended to clerk for Justice Frankfurter by the dean of Harvard Law School, that he was initially willing to consider a female clerk, but when he found out that she was a mother, that was just too much. He could not have a mother in chambers. And so she missed out on the opportunity to do a clerkship on the Supreme Court. And so that interview was just incredible in so many ways. I mean, to see her in person, I still am not over that. And it was almost a decade ago, and I ended up working with her for a year. But I can still remember walking into chambers and seeing her there in real life. But we ended up talking about my kids. I brought them up at some point and she smiled and asked how old they were. And then a few minutes later offered me the clerkship. And it was it was very special to me. I think it was a joy to her to be able to give that opportunity to so many of the clerks that she lost out on. And I was just one of many clerks who came to chambers, both male and female, who already had kids. So, it was a particular piece of it that was special to me.AH: [00:02:51] Lori, how about you?LAM: Well it’s hard to follow that story. But I have a couple of sharp memories from my interview process. The first was when I was extended the interview. I was working on the DC Circuit for Douglas Ginsburg. No relation, but they were friends.[00:03:12] But they come from a very different ideological background, I would say.[00:03:17] So the first thing I remember is DHC coming into my little part of chambers and letting me know that Justice Ginsburg had called him about me, and I was elated. Of course, I was really excited. And he said, but so here's the thing. I think she's going to call you and extend an interview. And I think if she interviews you, she's going to hire you. And he looks very serious. And I'm like, well, that sounds great. And he said, well, you understand, if she extends an offer to you, you have to accept that.[00:03:50] Yeah.[00:03:53] And then he looks at me like, what, Lori? I just want to make sure that there's not some other justice who would prefer to clerk for me. I looked at him like, wow, you had no idea there was one of us here in chambers. And so I was a sleeper liberal with nothing to indicate as such on my resume. But so he was surprised, as surprised that I was excited as I was surprised that she was interested in the interview. The process was stressful, as you'd imagine. I was busy on the D.C. Circuit. I was also studying for the bar exam, and I remember studying a lot for the interview. And I got there and I could not have been prepared for the first question that she asked me, which was, Lori, we've had a lot of trouble with our panel. And I have to tell you, I just secured it was beautiful new grand piano for the West Conference Room. The reason we have a new piano is the old piano would not stay in tune. Would you mind going downstairs and playing the piano after we're done here and letting me know if it sounds OK? So, you know, on my resumé, I had indicated I was a pianist, but I was not prepared to play the piano for a justice of the Supreme Court.[00:05:09] And I spent the entire forty five minute period with her not appreciating the experience. Or like really present in our conversation, but instead I was thinking, but my nails aren't trimmed and I haven't touched the piano in 12 months, and what could I possibly play for the justice that would be impressive. It turned out, mercifully, that after our conversation, she just sent me downstairs with one of her current clerk, Ginger Anders, who I knew from law school, and I was able to, in relative privacy, test out the grand piano and report back to her when she called to extend the offer that the piano was in tune and sounded great.AH: What did you play?LAM: I actually I played a pop song. I played Possession by Sarah McLaughlin because I hadn't played anything classical in a long time. But I had a keyboard in my apartment, and that was the kind of thing I was playing in those days. But I did.AH: Amanda. How was your interview?AT: [00:06:03] I was more nervous for that job interview than any job interview I've ever had in my life. And yet what was really nice, and I've heard the others say this as well, she put me at ease right away, and it really took it took a lot of the nerves out of the situation.[00:06:19] My interview story is actually less about the interview and more about what happened immediately after. So very fortunately, she offered me the job at the end of the interview and I, of course, accepted on the spot. And I went back to the airport to fly back to Boston.[00:06:34] I was in school still, and I called my grandparents from the airport to tell them I was very close with my grandparents and neither of them had gone to college.[00:06:42] It became immediately apparent in the conversation they had no idea who Ruth Bader Ginsburg was, and they didn't understand the enormity of this incredible opportunity.[00:06:54] And so I then had to explain to them who Ruth Bader Ginsburg was. And I remember I said something to the effect of grandma, you don't understand. I was only able to go to law school because she changed everything in this country for women and for both genders. Really. Excuse me. And I remember my grandmother saying, my God, she sounds amazing. Amanda, I'm so, so proud that you will go and clerk for her. So this whole story connects back. It's not a story about me. I wrote the justice, a letter the next day saying how excited I was and how honored I was to be able to go and work for her. And I decided to tell her, write up a story about my grandparents and the conversation and specifically what my grandmother had said. The justice wrote me back and sent a card for my grandmother with a letter to my grandmother, which my grandmother then framed and hung in her living room. So that was pretty special.AH: [00:07:51] That's a great story. What was it like working with her sort of on a day to day basis? I feel like, you know, the stories you hear from clerks about life at the Supreme Court, that different chambers have sort of different personalities, depending on the justice. What was it like working with her?AT: It was great, but she didn't let anything slide. She had the most exacting standards and she herself had an incredible work ethic. And she was a workhorse and she never wasted a minute. She used every minute for constructive purposes. And so you had you had to measure up. You had to do your best. I wrote something up recently where I said working for her was like playing with Michael Jordan. She pulled you up and made you perform at your best level.[00:08:43] I was not a pianist. I was an athlete. So I use sports analogies on my glory. She was she was a Michael Jordan, the Leo Messi, Megan Rapinoe of athletes in the sense that she she really made you rise to the occasion and meet her standards or certainly die trying, which I certainly did. The other thing, though was that just the meticulous care with which she took that she took with her opinions.[00:09:12] So you would give her a draft and she would give it back, really marked up, but then walk through why she thought you should change this. And I'm sure Lauren anf Kelsi, you're going to say this, I was such a better writer at the end of it, although I'm still trying to measure up.AH: Lori?LAM: [00:09:28] I would agree with all of that. I mean, I guess I would add, at least when I was clerking, she ran her chambers in quite a formal manner. I remember exchanging handwritten notes and typewritten notes, sort of regular thing, instead of knocking on her door because we were all so respectful of her process. And if she had her door closed and she was working on something, you wouldn't want to interrupt. And she was sort of old fashioned in that way. And we all sort of abided by that, as you would expect. I think her working process sort of in her manner and being sort of earned her a reputation for being cold. I think some people who didn't work with her directly may have had the impression that she was being standoffish or too formal or not. Not a warm person, and I can't emphasize enough how different that is from the person who I got to know. I think she was a deeply shy person, which is somewhat surprising given her chosen profession and her being drawn to being the trailblazer, an absolute iconic heroine for justice. She was a very shy person, but when you got to know her, she was also fiercely loyal. And we saw that sort of in the day to day workings of chambers. And then after the clerkship in the way that she really took care to continue the relationships that she formed during that year with the clerk.AH: Kelsi, do you have anything to add?KBC: [00:11:03] So I think appearing together, what Lori and Amanda said, Lori described, is exactly my memory of the pool memo process or bench memos.[00:11:16] There is lots of handwritten notes back and forth, and we each had our own little kind of folder area where she would put her comments and then we'd bring them back to her. It was the one job I've had in my adult life where my good penmanship actually was an attribute. But then, as Amanda was saying, when you got to the opinion writing process, it was much more intimate. You would sit in her office. She would outline what she had in mind for the opinion, you would draft it, and then you would give it to her in a printed copy that was triple spaced. So there's plenty of room for her to kind of do her her edits by hand. And then when she was done, as Amanda said, you would be called into chambers and you would sit at her table with her and she would go over every single edit and explain why she had done it. And it wasn't for her benefit. It was four ours to kind of teach us how to become better writers. And so I will always be grateful for that.[00:12:09] I think we all left the clerkship with this just master class on persuasion and writing and so grateful that she took the time to do that.AH: [00:12:21] You've already talked about some really special stories, but you haven't. What is your fondest memory, perhaps of Justice Ginsburg as a mentor or a friend? Lori?LAM: [00:12:33] Is it ok if I have two?[00:12:39] I'll start with the one that's later in time. So the thing that sort of sticks with me and is the perfect illustration of how much she cared for her law clerks as people happened about a year after my clerkship, a little bit more than a year, I gave birth to my first child. And one of the only things I remember about that experience, because it was a long, drawn out kind of marathon that I got a phone call from the justice who was, I believe, in Italy at the time. She called my hospital room to make sure that she told me that she knew I had had a cesarian section after a long labor and that it was really important that I surrounded myself with people who knew how much help I needed and that it was a major surgery and I needed to take care of myself like nothing to do with them. And are you planning to go back to work? And what does the law firm think of this? Because it was completely about the care and feeding of a person that she cared about. And it was incredibly meaningful to me. And I think it sort of illustrates the person she was. The other memory I will share, I shared recently on Facebook with our friends, Dr. Buloch, who some of you know, I remember her saying to me at the end of the term, right after our law clerk musical parody, which I think is still a tradition of the court. I had the role of an advocate who was delivering her first argument before the court and the first argument before the brand new Justice Alito and Sasha had written up an adaptation of Frank Sinatra's Mona Lisa and the new lyric for Sam Alito, Sam Alito, You're my fifth vote. And so it was my job to serenade him in this little parody show.[00:14:47] And at the end, she came up to me and she grabbed my hand and to look right at me and said, Lori, with a voice like that, how did you ever become a lawyer?[00:14:59] And at that moment, knowing what an opera afficionado she is and how much musical opinion, I couldn't decide if it was a huge compliment or if she was telling me that I should have kept my night job.[00:15:14] I still I tell that story with great fondness, and every time I see Justice Alito, we talk about it. It was a moment that was unforgettable.AH: Kelsi?KBC: [00:15:27] So this is not poignant, but it still makes me laugh.[00:15:32] So in chambers, there's that we had our land line telephones. And if calls came from other parts of the court, there was a kind of a regular sounding ring.[00:15:43] But if the justice called you, it was like a different I don't know how to describe it. It was like it was just a different tone. It was the justice calling. And we all would have this kind of Pavlovian response to that ring because it was why why is she calling? What's happening? What do they do? And not because of anything she did. She was always she was not a scary boss, but with someone that impressive, you just you wanted to do your best all the time.[00:16:08] So this was when we were working with her to help her come up with questions for the Shakespeare kind of mock trial that is done every year. And you're supposed to come up with kind of funny things for her to ask about. And so I had put together some questions and I wish I could remember exactly what it was, but it was some sort of joke about George Clooney in his unrequited love. So I think this is right around when he had gotten married. And so the phone rang. That kind of jarring ring and I picked it up and she said, can you explain this part about George Clooney to me? And I was like, oh, well, justice, he's an actor, he's been in a lot of movies. And I kind of go on for a couple sentences. And she stops me because I know who George Clooney is. Just why is this funny? And I don't know that I had a good response. But, you know, with her, you just kind of never knew where she was at in terms of cultural awareness. And apparently I misjudged that one.AH: [00:17:08] That's great, Amanda?AT: [00:17:13] Oh, my gosh, so many memories. And one of the really fun things is getting together right now with other clerks and hearing their great stories. Share these. When I was clerking for her, as Kelsi's story mentioned, you would sometimes help her prepare for the many, many speeches she was invited to give.[00:17:32] And I clerked for her before she was the notorious IBG and she was in huge demand then. I can't imagine after being a clerk, but she was giving one speech excuse me about the progress women had made in the workforce.[00:17:48] And she called me and she wanted me to work with her on it. And she said, you know, this is really incredible that she said this, said, you know, I'm much older than your generation and I don't really have a handle on what the current issues are.[00:18:03] So will you go around and get together with all the women law clerks and talk to them and come back and give me a real sense of what the biggest issues are that you and your peers in your age cohort, in your career cohort facing and thinking about and worried about. And I thought that was pretty amazing because she kind of wrote the book on how to figure out how women, you know, can succeed and overcome barriers. And she built so many roads of equality. But she was one constantly still trying to to open up those opportunities and break down barriers. And too she was and this is this comes out in her jurisprudence. She was trying to understand the experience of people who weren't in the exact same position as her to other stories. I mean, I could tell certainly more, but to others that immediately come to mind. She cited me once in an opinion, some of my scholarship. I was very, very excited. It was the first time I was cited by the court. I remember I'm laughing because I told my spouse and he said it doesn't count if it's Justice Ginsburg. She was just being nice. That's kind of our marriage. But she autographed the opinion with a really sweet inscription, one of the slip opinions, and sent it to me because I think she knew about was the first time I've been cited so that I have it framed in my office.[00:19:23] It was really, really sweet. A final story is just there was a period I'm so moved by Lori's story and there was a period in my life where I had I was going through something that was very, very difficult. And it was parallel to something that she had been through in her life around the same time. And there were some difficult months. And in the middle of that, she reached out. She she knew and she reached out. She wrote me a really beautiful letter about how I couldn't see it now, but that decades later I would look back and actually find much to appreciate from the experience once I got to the other side. And one she was right, of course, because she was profoundly wise and two that was incredibly kind and generous because of the parallels. I knew there was wisdom in those words, and it really carried me through some very difficult period.AH: That actually sort of touches on my next question.[00:20:22] So I guess I'll start with Kelsi. Lori and Amanda have both talked a little bit about sort of their relationship with the justice after they left the clerkship. And you all can, of course, talk about more.[00:20:36] But so what was it like? Does it change once you leave the court and you're no longer the clerk? You're a former clerk?KBC: [00:20:43] Yeah. You know, she was very accessible. So you could always any time you wanted to email her secretary and asked to come visit her.[00:20:54] And as Lori and Amanda point out, she would reach out to us when she knew things, significant things were going on in our lives. So after I had my first Supreme Court argument, it wasn't long before I got it. I got a note from her about what a great job I had done. And when I came into chambers later, she kind of grabbed my hands and she said, oh, you were super, she loved the word super.[00:21:18] But what really changed for me was my ability to be present in the moment with her during the clerkship.[00:21:24] I just felt like I always wanted to to do a job and to impress her and to live up to her standards. And I remember being in chambers one time and just sitting with her maybe a couple of years ago. And we were talking about travel and the kids and what she was up to. And I said, I just remember thinking in my head, this is extraordinary what I'm getting to do right now to just sit with her and talk for 30 minutes. And so I think that was the real difference, know, thinking, gosh, we don't cry when I say this, but I think the last time I saw her was in the winter before the pandemic started. And I had moved for someone's admission that day. If you go to the court a lot, this is something where you stand up and you just you get a script that tells you what to say. And there's not a lot that goes on. It's always granted by the chief justice. But I went to visit her afterwards and she said completely deadpan to me, you did a super job moving for admission. And I laughed. I said, thanks, justice.[00:22:32] But she was clearly being sarcastic because there's not any way to mess up looking for someone's admission.[00:22:38] So I will always remember that fondly.AH:She always paid attention to those in a way that most of the other justices didn't show respect…KBC: For any of us who appeared before her, whether it was moving for admission or arguing, you would always get a little smile for her, just a little recognition to kind of build you up on your standing at the podium, which is special.AH: [00:22:59] Lori and Amanda, do you have anything you want to add?LAM: [00:23:02] I will. I'll just add a quick one to what Kelsi just said, which is every time I had a reserved three chambers, she made a point to make eye contact with me when she entered the courtroom and gave me that same supportive little smile, which, you know, of course, delighted me every single time. I guess the other thing that I will say that that kind of changed about my relationship with RBG after I left chambers like healthy, I became less focused on am I doing a really good job right now in my interactions with her?[00:23:38] And I think it was long after the clerkship that I learned, you know, one of the most valuable lessons that she taught me and and stays with me to this day was that even Justice Ginsburg knew, and knew well, that we cannot do all things well at the same time.[00:24:00] And it was from that teaching that I had the strength to step away from my long term career and spend more time with my children. This is what I'm doing now. And it is also from that teaching that I know that when I choose to step back into the ring as a practicing lawyer or something else, that I will be fully capable of doing that very well again, but that there is a time for all things and we can't be everything all at the same time. And I think she would be the first to admit that she leaned on Marty when she needed to be the primary parent at times in her career.[00:24:42] And I think that that is probably one of the most underrated but important parts of her legacy for her women who are trying to be parents at the same time as having fulfilling careers.AH: [00:24:56] Amanda?AT: Yeah, I'll pick up on what Lori was just saying. I had the great good fortune to host her several times at various law schools where I've taught. And I remember I asked her, my students, they're always coming in and asking for advice. How do you find the work life balance? I have students that ask me what should I look for in a partner? So when I was interviewing her in front of the whole UC Berkeley law school community last last fall, I asked her what her advice was and she said, and this is exactly, of course, the story of her marriage with Marty.[00:25:30] She said choose someone choose a partner who thinks your work is as important as theirs. And it was really sweet because I was able to draw her out and have her connect directly with my students, which was a really special moment. So many of them told me afterwards they so appreciated that. But I also want to say a word about that visit. She was originally supposed to come to Berkeley the prior winter when she broke her ribs and they discovered the lung cancer event was to honor one of her best friends, Herma Hill Kay, who'd been faculty member, the second woman faculty member, and the first woman Dean at Berkeley Law. They wrote a first case book on sex based discrimination, had a wonderful friendship, and Herma had just died. So we had launched a new memorial lecture in Herma's honor. And the justice was so devoted to giving, to appearing for the event that even in the original schedule she would not cancel. I kept calling her saying, you cannot come. You need to focus on your health. You cannot. She said, I have to honor Herma, I must do it. And it was only when I think the family and the doctor said, no, you need to cancel all your events for a while, that she finally relented. And then immediately, once she got to the other side of that difficult period, she said, All right, Amanda, when are we doing this? We have to honor Herma. And she did come out and I'm very grateful. But she was you know, it was a struggle. She wasn't at full steam. And I was just in awe of her every moment of that visit, because the the will that drove her to want to honor this friendship and the and the special person in her life was truly was truly inspiring.KBC: [00:27:] Picking up on the last thing Amanda just said about her fierce desire to honor her friend.[00:27:21] I think what I carry with me is just the inspiration of the justice’s work ethic. And I don't she was not a workaholic. She was a life aholic. Everything.[00:27:35] There was no moment wasted from the moment she got out of bed until the end of the day. She was intentional in every way.[00:27:41] And the reason she was able to be so extraordinary in her work, but also so committed on a personal level to her clerks, to her friends, she made time for her workouts. You can't do all of that if you are unintentional about your time, if you're kind of just dawdling or and so I having seen her go full steam for eighty seven years, not a moment was wasted.[00:28:09] And I take that with me. When I get up in the morning, I try to live my life the same way so that I can be the parent and mother I want to be and also fully committed to my job and try to get that workout in and try to make the phone call to the friend. You can live a whole life that way and get a lot done. It's tiring, but it's so rewarding. And so when I when I'm sorry, I start to feel tired, I think of the justice and I don't want to waste any time either.AH: [00:28:36] That is a wonderful way to finish. Thank you, Kelsi Corkran, Lori Alvino McGill and Amanda Tyler for joining me to talk about the personal side of Ruth Bader Ginsburg.[00:28:50] That's another episode of SCOTUStalk. Thanks for joining us. Thanks to Castext, our sponsor and to our production team, Katie Barlow, Katie Bart, Kal Golde and James Romoser.