The Legacy of Justice Scalia with Justice Ruth Bader Ginsburg

writer a Barack once said music washes away from the soul the dust of everyday life and this conversation is really about those ideas that help us to transcend those everyday vexations of life music friendship the common interest and aspirations that we have for institutions that provide stability and undergird our society I was asked to introduce this evening give some context and to introduce to justice there are some of us who need introductions and then there are those like Prince the queen the pope albright and the notorious RBG that need no introduction so I will not introduce you but if I may I would like to share one or two very brief reflections it was at a dinner party in 2003 of a new friend and neighbor in Georgetown that I was invited to dinner I am now convinced that I was invited to fill in an empty seat the Scalia seconds Berg's and the O'Connor's were there that evening I was seated next to Professor Marty Ginsberg and with very little to talk about except the Goldberg Variations and Glenn Gould's recording we struck up a beautiful friendship that has lasted for a very long time inspired by music that stuff that washes away the dust of everyday life the Goldberg Variations was and is a wonderful metaphor for that relationship and the journey that we've experienced because the Goldberg Variations reminds us that amidst all of this what is perceived as chaos is this underlying order that gives meaning and it begins with an aria and at the very end it's a variation on that same theme and December of 2016 Walter and I and some colleagues started to conspire about a special convening during ideas festival with Kitty and it was to invite that wonderful Odd Couple of a Supreme Court to come here to the Aspen Institute to talk about the things that Walter will talk about with justice Ginsberg today friendship music ideas and a regard for institutions justice Ginsberg and Scalia were on a trip in India and Justice Scalia was photographed in the front sitting on the elephant and behind him was justice Ginsberg a reporter asked feminists Lee why were you sitting behind him and her reply was it's about the distribution of weight [Laughter] the Aspen Institute is not a safe place it's the place where we come together to agree to disagree and to work to find common ground for the things that are most important in society for a very long time our guest has been carrying a very heavy weight fighting very important issues for women and for minorities and those who are voiceless and a man for all seasons there's this wonderful moment where Paul Scofield turns to his daughter Margaret and she shares with him that the King has just made a decree and he turns to her and he says like what is it a cream Margaret and it doesn't matter it's the intent and Thomas More turns and replies no it's all about the words every word matters when God made the angels he made them to show him splendor and plants for their innocence and animals for their simplicity but man he made to serve Him wittily in the tingle of his mind thank you for serving us in the tingle of your mind so faithfully your honor it's a pleasure to have you here [Applause] I was asked to talk to you about my dear colleague Justice Antonin Scalia and I'm going to read to you the introduction I wrote for about that too of Justice Scalia's sons and a formal offer put together this book will be out in October I first met Antonin Scalia when he served on the faculty of the University of Chicago's Law School he was in Washington DC to deliver a lecture on an issue generating controversy among scholars of administrative law a field in which then professor Scalia was a widely recognized leader I disagreed in considerable part with the substance of his presentation but his acumen affability and high spirits captivated me when Professor Scalia was appointed to the United States Court of Appeals for the District of Columbia Circuit in 1982 the court on which I had served since 1988 I joined my colleagues in welcoming him with delight he brought his large family to the immediate pre formal investiture oath-taking ceremony needed to place him on the federal judiciary payroll I recall being uncertain whether Maureen Scalia was his wife or his eldest daughter he and his partner in life he held moving in highest esteem he often referred to her as worrying the beautiful a 1960 Radcliffe graduate Maureen was super super smart also master of the arts of raising children line of them managing social calendars selling out Couture clothes and bought me cooking she and my husband's supreme chef body Ginsberg well the most popular Co caterers at the Supreme Court thousand quarterly gatherings launched in the nightly Thornhill Rehnquist dining room until the addition of two male spouses it was the ladies to honeymoon so my friendship with Justice Scalia was regarded by some as ugly because we follow distinctly different approaches to the interpretation of the context but in our years together on the DC Circuit there was nothing at all strange about a fondness for each other best friend of our then Chief Judge J Shelley right his best friend was Circuit Judge Edward 810 right had served as a federal district court judge in New Orleans endeavoring against massive resistance to enforce desegregation in education and public transportation hm I've been second intamin to J Edgar Hoover at the FBI right was a registered Democrat Janet registered Republican yet the two were so close they even shop for clothes together so it did not seem unusual that my closest DC Circuit College Wakata appointee Harry Edwards and Reagan appointees Robert Walker and Antonin Scalia Justice Scalia was known for opinions of uncommon clarity and inimitable style writings that did not disguise his view of the opposing position yet as he put it he attached ideas not people it was a well schooled grammarian now and then he told me or stop by chambers to point out a slip I had made in an opinion perhaps he did this resisting circulation of a memorandum copies to the other justices which is the way we usually communicate with each other he thought that might embarrass many so he spoke to businesses and when we disagree which was not uncommon my final opinion was always clearer and more convincing and my initial circulation Justice Scalia honed in on all the soft spots energizing me to strengthen my presentation unlike my dear colleague is an occasion I never sought to join Justice Scalia on his hunting adventures but we several times traveled aboard together for exchanges with judges and lawyers in other lands Eric motley mentioned famous Indian trip well during that visit in 1994 I learned of an unusual Talent Justice Scalia possessed on a day when we were free from judicial interchanges our driver took us to his friends coffee shop in a bar on one wrong after another was tossed onto the floor leaving me without a clue which to choose Justice Scalia pointed to one he thought just right for their Beach as in North Carolina he thought Maureen would like it I immediately picked the same design in a different color it has worn very well we should have a passion for opera and were twice supernumeraries extras at the Washington National Opera talented composer librettist pianist and lawyer directly wrote a comic opera title billion in spurt which by the way Scalia comes first because everything in the court is done in seniority order the law Scalia Ginsburg has in performance full or in part in various venues in it in his preface to the publication of the libretto Justice Scalia described as a high point in his life the spring of 2009 and evening at a washington national operas ball held at the british service ambassador's residence in an elegant spacious room Justice Scalia throwing to professional tenors as a piano for a message of songs defaulted to famous three tenors performance both on and off the bench Justice Scalia was convivial exuberant performer most of all I prize the rare talent Justice Scalia possessed for making even the most sober judge smile when we sat side by side on the DC Circuit the panel of three judges I occasionally pinch myself very hard to avoid uncontrollable laughter in response to one of his clips on the Supreme Court when we were separated by a few seats note he sent my way elicited elicited a similar response the collection soon to be published captures mind heart and face of a Justice who has left an indelible stamp on the Supreme Court's jurisprudence and on the teaching and practice of law the work of his fine hand will both inspire and challenge legions judges and advocates if our friendship encourages others to appreciate that some very good people have ideas with which we disagree and that despite differences people of goodwill can pull together for the well-being of the institution's we serve and our country I will be overjoyed and I am confident Justice Scalia [Applause] Thank You Bonnie and Tom McCluskey sponsoring this I want to thank you very much Justice Ginsburg for what was an incredibly important message not only delightful reminiscences but in this summer of our discontent to remind us that civil discourse and respect for each other can come across ideological lines something I think we've sometimes forgotten so thank you very much and that is the theme by the way of Scalia Ginsberg the comic opera that will be performed next in Cooperstown New York on August 13th the Opera is roughly based on the Magic Flute Justice Scalia is locked in a dark room he has been punished for excesses dissented again and we are introduced in separate areas so he said the justices are blind how can they possibly out this the Constitution says absolutely nothing about it then I answer him that he is searching for bright-line solutions to problems that don't have easy answers but the great thing about our Constitution he said I like our society each an ebow anyway so go back to Scalia in a dark room I enter through a glass ceiling and I fell a character left over from son Giovanni commendatory that I am there to help Justice Scalia pass the test to commentar Torre said I don't understand this he is your enemy why would you want to help him and then I say he's not by anything he's my friend and then we break into a duet that's titled we are different we are one different in our approach to the interpretation of legal texts but one in our reverence for the institution we serve and for the Constitution of the United States and he loved that I know he never got to see the full operable form but the we are different we are one which is sort of the theme of our nation he liked that part - of the Opera right yeah she did he heard excerpts several times it had its world premiere in Casselton Virginia it was Lorin Maazel Music Festival it was a very unit norm as I have died but Scalia was often Europe teaching so he couldn't attend that performance the theme of the Opera is he is very much of a textualist originalist you've often been called a minimalist and that you do not want to do very sweeping judgments but you believe that the text evolves let's play that out if you would on perhaps a phrase like cruel and unusual punishment where you've been on different sides of the death penalty issue and Scalia would tell you that capital punishment is right there in Constitution so obviously the framers of the bill of rights contemplated a death penalty a my answer to that is as you ever visited the jail that's maintaining in Williamsburg region there you will find various instruments if not torture than the stop things made to embarrass milli eight people 20 lashes would we put up with that today silly the answer would be that cruel and unusual so that Clause like the equal protection of the laws grows with society thing zip or once considered permissible we have grown to appreciate are not permissible because they're out of tune with the current society and it's noise and how did he refute that how does he say we should just not interpret cruel and unusual in light of an evolving standard of what is cruel what is it you he called it and originalism both demure that is he thought that if we didn't strictly follow the text then the judge would be making it up so to avoid that he interpreted the Constitution laws literally literally I faked my cue from the opening of our Constitution it's we the people of the United States in order to form a more perfect union the original Constitution was written in 1787 who were we the people who can't read the answer is evident only white males own property so I see the genius of this Constitution is over the course and well over too sometimes turbulent centuries We the People has become ever more inclusive left out in the beginning when people huddled in movement bondage Native Americans didn't have the furniture and if half the population the women but I think when the 14th amendment was added to the Constitution in 1868 those framers envisioned that it would have growth potential if you had asked any of the framers what does this mean that women are persons of equal citizenship stature they would have answered no many states didn't yet have married women property acts so women who were Mary couldn't contract in their own name couldn't sue and be sued in their own name couldn't hold property in their own name there was no immediate attempt to change that but how could one think of an equal protection norm that leaves out half the population on that point one of your famous disagreements was on VMI the Virginia Military Institute in which they were not accepting women and you made pretty much the point you just made there that that was denial of equal protection and he wrote a scathing dissent attacking you but the most interesting little thing I learned is that before he circulated it he walked by your chambers and gave it to you early so you could prepare your own decision and refute him I had circulated my opinion I honed the clock was ticking as a cop they had no backlog so everything that comes in the first Monday in October must be out before we leave town in tune so getting into the early days of June and Justice Scalia came to my chambers he screw down a sheaf of paper and he said Ruth this is my penultimate draft of the VMI dissent I'm not yet prepared to circulate to the court but I wanted to give you as much time as I can to answer it what did you have to answer or change he made on him the final VMI opinion is very strong but it is so because of the experience of others Scalia's dissent he descended to a level that I thought should be kept out when he added a footnote that said we must excuse this opinion author who knows about the State University in New York but she referred to the University of Virginia at Charlotte so there is no university a bazillion at Charlottesville there is only the University so how did I fix it up what we enclose the University of Virginia axon itself an encoding and excellent federal district judge in the Eastern District of Virginia judge marriage didn't make any difference Scalia kept the room opened about the justice and knows about places like SUNY in the now but to push you on the substance we're in he he says we're in the Constitution do you find that VMI has to admit women where'd you find it in in the Equal Protection Clause which today surely must include half the population the case has an interesting and revealing title it was United States against the dinner so wasn't an individual woman who who was showing to be admitted it was the United States government saying to the state of Virginia we cannot make an opportunity available to members of one gender but not the other it wasn't all that long ago that the University of Virginia at Charlotte so was all male that didn't change in until nineteen nineteen seventy you mentioned I was up but it was I think keenly disappointed to Justice Scalia that I then chief Chief Justice Rehnquist signed on to my judgment not opinion but the judgment so Scalia was the lone dissenter in the case that's one item unhappy he sort of like that role sometimes but I had a great experience in February when the commanding officer of VMI general hey asked me to celebrate the 20th anniversary of that decision I missed my one year but I did get that and to see how proud they are of the women cadet women who expected to grow up to become engineers and glia scientists they didn't change the partner living although they did make a concession the very first year when we were admitted the school said we will treat them just like the myth no special dispensation so the women will have to have their head shave looks like the male did it that when they got open that as I didn't have to come to the court you mentioned a moment ago cruel and unusual evolving standards how well you at least as opposed to him would interpret it differently each decade or each century as we evolved I happened to be at a memorable scene I don't know if you'll remember it but every now and then because I'm such a geek I actually go to the Supreme Court and just sit in the back and listen to the arguments and it was on juvenile death penalty and you lean forward at one point whether you know there's a question whether juveniles could be put to death and you ask something about international law and I felt like a volcano was erupting on the other side because suddenly Justice Scalia started not so much jumping down your throat because he had to address it to the poor lawyer who was trying to present the case but he was responding to you by that do you remember that and how did you all differ on international law and my comment was that we were the only industrialized country in the world that administered the death penalty to juveniles and we have since had a follow-on case is it permissible consistent with the cruel or unusual punishment clause to sentence a juvenile to prison without the possibility of parole that is a life sentence as you mentioned the court tends to not take giant steps move one step at a time so after the court houses the death penalty for juveniles was unconstitutional unconstitutional and we had lots of scientific evidence about the state of maturity adolescent so after that precedent then the court ham the hopeless sentient life without the possibility of parole is also unconstitutional is we by the way in the last several years three actual executions carried out in the United States has gone down and down so now there are only six states that in fact administered the death penalty and in the six-eight its particular counties so you might have a district attorney in one County which keeps the death penalty and in another County refuses to ask the death penalty that's interesting because what that is is a very difficult issue working its way not just to be decided by the Supreme Court but working it way through the democratic process through legislators and others making that decision I know you in Justice Breyer at one point said that the Supreme Court should reconsider and perhaps track down the death penalty you were in the minority and so it's become state by state and it's begun to decline I raised that because you said something extraordinarily interesting about roe v-- wade which is though obviously I should assume obviously you felt that women should have a right to choose you felt that roe v wade had a downside to it because it stopped that issue from marching through the legislative process and it should have been decided perhaps that way am I correct it should have been the judgment should have been the same Texas had the most extreme law in the nation a woman did not have access to abortion unless it was necessary to save our life didn't matter that she might end up being debilitated there were several women who had taken the lid of my and figured having a deform fetus those chances of survival would not be good and none of that counted in Texas is that necessary the same with the woman's life so my view was as a court should have put down its pen declaring that law unconstitutional and then we the next case and the next case to carry the principle as opposed to the sweeping decision outlawing all abortion let see is the decision the decision made every abortion law in the country even most liberal unconstitutional in one fell through it gave the rights and life people a new target to aim a single target the unelected justices of the Supreme Court has decided this question for the nation taken it out of the political process to this day on the anniversary of roe v-- wade case was decided in 1973 it is a march ready schoolchildren released from school to participate but there was a target that was easy to hit so that's why you're in favor of a more minimalist approach but it's not necessary to do a sweeping judgment I thought the court should have dealt with the law that was before the Texas law then it could go on to another case where the state imposed severe restrictions it could have done but what the court usually does think of brown v board of education many times Thurgood Marshall appeared before the court and said separate but equal is not before the court today these facilities are anything but equal then when he had his building blocks in place including the University of Texas that when the state was given to understand you must give my knowledge student an opportunity for legal education they didn't admit minorities to University of Texas they set up a separate law school vastly inferior so there was that and then there was another case of the state that said we'll pay the tuition of any African American to go to a school in another state but we're not going to provide or we will put this student isolate him in the back corner of the room all those precedents were in place and then Marshall could say to the court in Brown reborn a separate state enforced separation of the races is never constitutional that's when Thurgood Marshall was a lawyer appear appearing before the court before he was a justice let me ask you based on that analysis I'm going to give you a comparable case gay marriage would it have been possible to do a step by step approach instead of the sweeping decision on gay marriage and would that have been perhaps preferable given the political process the water it was step by step the ADA case of Lawrence v Texas started at all Texas made same-sex relations abroad potential sodomy was a crime the court first decided that consensual activity between adults was none of the state's business that was step one and then in Colorado there was an ordinance passed that said in our anti-discrimination laws anti-discrimination on the this is a race religion national origin gender we will not include same-sex relations that meant is that gay activists had a hurdle to cross that no other group did no no other group had to fight to be included in anti-discrimination laws so the court held that unconstitutional and then there was Congress's reaction in the so-called DOMA case Defense of Marriage Act case saying for all purposes the federal government will not recognize same-sex marriage so you couldn't file a joint return with your life's partner or you couldn't get Social Security benefits from if your spouse was a covered worker so over the phone was the fourth time and in the mean time a number of states had changed and so in my home state of New York same-sex marriage was recognized the handwriting was on wall it was a little bit like in Nevada and they're not so good all day isn't it would go to Nevada to get a divorce on cents and she stayed there for six weeks other stage began to think why shouldn't why should the ball have a monopoly on that business and inside of a 10-year period no fault the was took the country buddy by storm is back to Scalia that was one of his most vibrant dissents on same-sex marriage right what did you discuss it with him did you all have any colloquy did it sharpen your opinion and what did you think of his approach to it basically an originalist approach not just that he was anti-gay it was where in the Constitution do you find this yeah there was no room for discussion I'm added that issue you mentioned in one of the cases on the waited over the phone Justice Kennedy but when by the way he wrote all four opinion on same-sex relations he had referred to a lead opinion on the early 1980s by the European Court of Human Rights under your the European Convention on Human Rights and he was roundly criticized but he was the basic making the same point this is where the rest of the world country said adhere to our values this is where they are how far behind came in the United States Supreme Court you say Evy you famously made your legal early career part of it was on gender discrimination cases when you got out of law school is it true that Felix Frankfurter would not hire you because you're a woman is it true yes but he wasn't alone there was only one woman ever hired as a locker before 1968 and that woman was Lucia Loman she was engaged by Justice Douglas Justice Douglas always took his clerks from the recommendation of the West Coast Law School Dean they wrote to him one year sorry but we have no one qualified to be your Walker and he wrote back saying when you say you have no one qualified have you considered women if you have one who is absolutely top-notch I'll hire well he didn't hire art she worked out very well it was not another woman law clerk until 1968 when justice black hired Margaret Cochran some say that she had a special in the Justice because her father was a well known Democratic probably record court on write-up and one weekend he sent a justice Black said Margaret home to go through 100 cert petitions and she came back on Monday and said I'm sorry I couldn't finish the job and my father had to appear at a number of Democratic Party fundraisers he was a widower so he took me along justice not was not not pleased with that answer but it wasn't until 1972 that women's again the shock in numbers and professor al Sachs who was my teacher at Harvard picked frankfurters clerks and when he recommended me crying for the first time does she wear skirts I can't abide women in pants if you want her to wear skirt she would win eventually justice frankfurter decided he was not prepared to engage a woman this was in I was I had a Federal District Court clerkship so this would have been in 1960 speaking of that long history of that type of discrimination one of your most influential dissents was in the lilly Ledbetter case where they said she hadn't raised the issue soon enough a statute of limitations had run out I think in your dissent you ended up telling them what to do I ended up telling Congress what to do a tag line of lilly ledbetter dissent was the ball is now in Congress's court to correct the error into which my colleagues have fallen and inside of two years with large majorities Republican and Democrat Disraeli Ledbetter Fair Pay Act was adopted I think there is a photograph of President Obama signing that act it was the first full piece of legislation he signed when he took office and I believe that Madeleine Albright is in that in national de Graaff you are okay but and Hillary Clinton was in it eleanor holmes norton olympia snowe well I had seen this once before in my lawyer in days when the Supreme Court decided twice in the 1970s that discrimination on the basis pregnancy was not discrimination on the basis of sex because the world was divided into two classes of people there were pregnant people and non pregnant people and many women were in the nun practice so how could it be gender-based discrimination there was a coalition is for women to change man in Congress passed the Pregnancy Discrimination Act amending Title 7 sauce principle anti discrimination in employment law and that actually system of simplicity is simply said discrimination on the basis of pregnancy is discrimination basis of gender the most important case I think that you're going to have next term which obviously you can't talk about how you can decide is gerrymandering artisan part-time and on what principles is it being argued and are you wrestling with it well this case will be argued in the coming term we have a great number of cases where districts were rigged so that it would pack all the african-americans into one district or disperse them the idea was to dilute their voting strength so the corner is uncomfortable dealing with racial gerrymanders so far it has resisted the argument that the legislature or the democrat or republican has drawn the district lines so that the party in power will get the majority of seats in the legislature even if to proposal all the citizens the other part would prevail this is a three-judge federal district court held Wisconsin's the districting line is drawn by Wisconsin's Republican legislature unconstitutional and it's a game both sides have played when the Democrats were in control of the state legislature they fix the district lines so the Democrats would have an advantage and always some Republicans in control of what many people have urged on the court is it's a threat to our democracy that people who are in districts that have been raised for one party or the other well so why bother voting the outcome is preordained we are in public and districts or a democratic district it would seem that that would be a nonpartisan question of law and it has been over the years Republicans have been in favor of getting rid of bad gerrymandering - do you think this will become a partisan issue and how do we prevent constitutional issues from be decided on party basis there are already is not experiments but other systems underway California and Arizona have taken the redistricting job away from state legislatures and given it to a nonpartisan Commission to draw the district lines that was challenged and unconstitutional because the Constitution says that the state legislatures will draw the state district line I took the position for the majority districts Camille is on the other side so what the state legislature mean it who has the political authority over this question and if a state chooses to have a ballot initiative where the people in effect passed laws then the people are the legislature for that purpose and that was a lopsided majority opinion let me open it up if the mic runners yeah okay probably a couple of questions I think yeah is that a hand or a mic okay grab the mic then hi I preside over the geographic highest court in the land over in Leadville and it's the Judicial Conference we've had a number of presentations about the failure of the judiciary in World War two Germany at a time where there's really some question whether the chief executive denigrates the institution what is the role of the judge of the judiciary to speak up to embrace and to celebrate the reverence that you and Justice Scalia share and celebrate on the court a judges can't defend their opinion they can only say we read my opinion but we do rely on the bar on practicing lawyers to remind the public what a precious thing judicial independence is and it really is the hallmark and pride of the United States we are the envy of the world in that respect you can think of famous cases think of the steel seizure case when the workers were about to go on strike President Truman thought that that was dangerous for our war effort in Korea so he had the government government take over the steel mills that was challenged by the mill owners and the court held president you don't have that authority to act um to do what your executive order commands you must have legislation it's not your decision you in combination with Congress what did President Truman do he told the Secretary of Commerce you backed the mills to the owner does that have a neck immediately or most dramatically in my lifetime it wasn't even a Supreme Court decision it was Judge Sirica district judge in the District of Columbia who was presiding over a burglary burglary case the burglary occurred at the Democratic National Committee headquarters in charge Sarika sent a subpoena saying every person is obliged to give relevant evidence in court and the tapes that you have made of conversations in the Oval Office are needed for this criminal prosecution you must turn them over and Nixon turned over the tapes and the next day you resign I'm often the poor has lacks the power of the purse we don't have an independent resources at our command we don't have troops that we can call out there are so many incidents in in our country where the executive has accepted that the judges have the last word of governor Orval Faubus in open film he blocked the door of Central High School he said no African American child will ever cross the threshold of this school if not altogether clear whether President Eisenhower was an enthusiast about desegregation but he called out the truth and is a picture on the front page of the New York Times the truth on both sides and the spin line of black children going to be entrance so I say right now people may be down on the way our system is not working but of all three branches the judiciary comes out way ahead hi [Applause] further question okay way in the back there I think I'm sorry there's a hand of a woman is it yeah thank you for being here I had a question if you and Scalia ever talked about Citizens United outside of the chamber and if this ruling has had more or less of an effect that you thought it might question I think it has exactly the effect that was predicted by did dissenting opinion which I tolling so it will remain to be seen whether that decision has stained stained upside by that do you mean either Congress changes the law or I don't know that that would overcome this the constitutional issue or is there a constitutional amendment or does the Supreme Court reconsider is it to waive a constitutional amendment constitutional amendments are powerfully hard to pass in the United States I know that the years I was in the trenches urging ratification of the Equal Rights Amendment which failed on three traits is that the court will have a chance to reconsider because there will be states that will pass campaign restriction and law laws and those will be tested and eventually make their way to the Supreme Court giving the court an opportunity to rethink its decision we have a great history in our country of dissenting opinions in time becoming the law of the land take the worst case the Supreme Court ever decided to Dred Scott case we were to two cents in that case and in Scalia one says it when when the court gets it wrong really wrong it's comforting to look back and see that there were justices who pointed out how wrong the court's decision was many places in the world there are no defendant opinions a court judgment will come out as the judgment of the court it will be faceless you don't go who wrote the judgment we don't know whether there was disagreement many places including the European Union and the European Court of Justice don't allow the dissent because their notion is we must make it appear that the law is clear and certainly the people shouldn't think that the law is in stable I've had many discussions with Continental jurists insane there must be many decisions where you were divided oh yes and they freely admit that that they think it's dangerous to let the public know that there's more than one way one more than one reasonable way of reading Kalama that mean that the most scathing dissents of your close friend Justice Scalia were welcomed by you and do you think they will have an impact and there is a book that came out in the spring called the title in something like the liberal opinion of Justice Scalia and in many areas he has been ahead of the pack in certain seizure cases he has given a dynamic interpretation to the Fourth Amendment the first time he did that with the case involving helicopters flying over the roofs of houses if the heat emanations was stronger than one might expect chances are that the homeowner was growing marijuana so that the helicopter never touch down on the house but Justice Scalia said that is incompatible with unreasonable searches and seizures you also agree that the police need a warrant to examine the cellphones so in that area and in another and the right the right of a criminal defendant should be confronted by the witnesses against him Scalia has hid on those unreasonable search and seizures if he's such an originalist how does he figure out how it applies to GPS systems cell phone records by the phone companies that would seem you would need a evolving interpretation well he thinks that that Clause itself calls for an evolving interpretation because it's unreasonable finally I think after Bush v Gore when you were very much on different sides it was a very tough day I think everybody was very tired at the end and late that evening you got a phone call from him it was an endurance contest in the government and the opposing parties while Deb briefs on WiiWare to be due on Saturday the briefs were filed on Sunday we heard oral argument on Monday and then the opinions were out by Tuesday the press was fashion confused they first reported the decision was 7 to 2 and in fact it was 5 to 4 they misread where Justice Breyer justice Souter were well it was a trying day I had a call from Justice Scalia about 9 o'clock that night Justice Scalia said Ruth what are you doing still at the court you should go home and take a hot bath which I did one of his favorite expressions was get over it real quickly I just want to mention that this is not your first time at the Aspen Institute and thank you've been here recently but also you were here 35 years ago for the Justice and Society seminar that justice Blackmun and others took it's one of the original seminars of the Aspen Institute how did that affect you and I think it affected justice Blackmun as well it was a very good set of materials put together by an NYU professor is the conversations were stimulating we took great advantage of the music festival often sitting outside I guess listening to rehearsal I mentioned in some in fact I mentioned to the people in the other room our discussion one of our to discussion leaders shirley mount Hostetler would have been Jimmy Carter's pick for the US Supreme Court if there had been a vacancy in his in his term he did a remarkable thing we changed the complexion of us judiciary he looked around at the federal judges and said you know they all they won't look like me that is white man has caught me but that's not how the great United States so he was determined to put women on the bench members of minority groups not as one at a time two realities but in numbers so at the beginning of Carter's term shorty Hoff Statler was a court of appeals judge on the Ninth Circuit the only woman oh that's a whole court of appeal he made her the first-ever Secretary of Education and then there were none again he nominated over 25 women to federal trial court and I was never lucky 11 that he pointed to a second law to appeal and finally to leave us here since you've talked about books the book that you did on Justice Scalia is out this fall Eric motley has a book out this fall I have a book out this fall secre Secretary Clinton has a book out this fall I think though that the book that's going to blow us all away and leave us in the dust is something called the notorious RBG workout which your trainer is writing about the workout he puts you through every evening I kind of want to know what that is and also with all due respect Justice Scalia could you have taken them down if you needed to but we have a gym downstairs it's only for the justices if another justice is there I usually wait come later but you know and never never bothered him if I was there at the same time he was if we began working together in 1999 it was the year I had colorectal cancer so I had massive surgery and nine months of chemotherapy six weeks of everyday radiation and by the time I was finished with all that my husband said you look like a survivor of ashes we must do something to build yourself up and then I asked around and Vilas Kessler was a district judge that we have someone in the district court he works in the clerk's office when he's not training people which means a number of the judges in the u.s. courthouse we think he would be just right for you and now he trained the justice kagan when she gets over a foot injury she'll go back to him and Justice Breyer his his latest training this whole routine has been filmed but the book is very well illustrated and when I get back waiting the me will be the page Bruce and I have an almost eight good to approve it we'll see you on book tour and thank you so very much for an inspiring evening thank you thank you very

Channel: The Aspen Institute

Views: 25,945

Rating: 4.6305223 out of 5

Keywords: Ruth Bader Ginsburg, RBG, Notorious RBG, Supreme Court, Justice Ginsburg, Anotonin Scalia, Walter Isaacson, Aspen Institute, SCOTUS, United States Supreme Court, law, friendship, originalist, Constitution

Id: auYGdE28KIQ

Length: 71min 47sec (4307 seconds)

Published: Fri Aug 04 2017