Irin Carmon and Jay Wexler Talk Ruth Bader Ginsburg, SCOTUS, and More

In this episode of the Fiction/Non/Fiction podcast, New York Magazine senior correspondent Irin Carmon (co-author of Notorious RBG) and novelist and Boston University law professor Jay Wexler (author of Tuttle in the Balance) talk about news coverage and fictional depictions of the Supreme Court. How partisan is the Court becoming? Why use humor to write fiction about the nine Justices? Ruth Bader Ginsburg was Vladimir Nabokov’s student—what effect has this had on her writing, and how are she and other liberal justices contending with their Trump-appointed colleagues?

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Readings for the Episode

Irin Carmon’s archive at New York Magazine · “Ruth Bader Ginsburg and Clarence Thomas Are Officially at War Over Abortion,” The Cut, May 28, 2019, by Irin Carmon · “The big cases: Here are the U.S. Supreme Court’s most consequential cases in its current term, which runs from Oct. 2018 to June 2019.” By Han Huang, Lawrence Hurley and Andrew Chung, Reuters Graphics · Tuttle in the Balance, by Jay Wexler · The Adventures of Ed Tuttle, Associate Justice, and Other Stories, by Jay Wexler · Notorious RBG: The Life and Times of Ruth Bader Ginsburg by Irin Carmon, Shana Knizhnik · Supreme Courtship by Christopher Buckley · Our Non-Christian Nation: How Atheists, Satanists, Pagans, and Others Are Demanding Their Rightful Place in Public Life by Jay Wexler · Ari Richter, artist · “The Census Case Is Shaping Up to Be the Biggest Travesty Since Bush v. Gore,” by Richard L. Hasen, Slate, June 25, 2019
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From the episode

Part I: Irin Carmon

V.V. Ganeshananthan: Most people have their eye on a couple of particular issues, especially with elections coming up. Two cases, one from North Carolina and one from Maryland, are about partisan gerrymandering, and the case from my home state of Maryland, Lamone vs. Benisek, argues that Democratic legislators there engaged in gerrymandering, and the North Carolina case, which is Rucho vs. Common Cause, suggests that Republicans did the same. So what do these cases mean for our increasingly partisan politics?

Irin Carmon: Up until now, the Supreme Court hasn’t really said what kind of gerrymandering, what kind of sorting of people into districts in a biased way is okay, and what isn’t. They haven’t really set a standard. Most people have this understanding that gerrymandering is bad. But of course, these districts have to be drawn in some way, and the question is, who gets to decide and under what bases. Some of the states whose maps are going up through the court system right now, there’s a couple in front of the Supreme Court, there are still more states’ maps that are being challenged at the lower courts—they represent really extreme examples of partisan gerrymandering. So you literally have, in some of these cases, for example, in North Carolina, you had a representative say—“I think electing Republicans is better than electing Democrats, so I drew this map to help foster what I think is better for the country.”

So that sounds crazy, right? But the question has been, is the Supreme Court empowered to get involved in that level of state politics? So this will shock you that the conservative justices, at least based on what they said at oral argument, seem to basically think, this is not our job, let politics play out as they see fit. And it just so happens that in many of the cases, if not all of the cases, these biased maps benefit Republicans. In general, you have the liberal-leaning justices, the Democratic appointees seem to be signaling that they want to come up with some kind of neutral principle that doesn’t allow the party in power, whether that’s a Democrat or a Republican, to draw maps that keep themselves in power. And Justice Ginsburg has often said—and she repeated this in a speech at the Second Circuit—that we should not have a situation where politicians choose their voters, it should be the other way around—voters choosing their politicians. And so these cases actually came up through the system when Justice Kennedy was sitting on the court, and I think that they thought that he would be offended by the abuse of the process. The last term, they kind of punted on this question of partisan gerrymandering. But we really don’t know how the newly constituted court with Kavanaugh will rule on this.

Whitney Terrell: Yeah, this is where I start to get nervous about the way that these two cases—the other one we’re going to talk about is the question on the census about citizenship—but they’re both related in certain ways to drawing maps and it feels to me like a way of using the courts to allow a minority party to stay in power, to manipulate voting in different ways, whether it’s through gerrymandering, or . . . One of the separate parts of the citizenship question on the census is that there was this—one of the GOP strategists who wants to use—who wanted, he’s dead now—to use that question as a way to redraw Congressional districts based on people who were citizens rather than just people in a district. Those are both attempts to fix voting in ways and using the court to do that. That seems very frightening to me.

IC: There is obviously a strategy on the right to rig the rules of democracy in a way that makes them less accountable to voters. I don’t think it’s wrong to draw that conclusion. It is true that Democrats have also used the system to keep themselves in power, to entrench their own seats. The Maryland case is an example of that. That’s one reason why there could be plausibly in a gerrymandering sense, there could be a “both sides.” And that’s why some of the pro-democracy groups that don’t necessarily take a partisan position saying that we need to come up with, for example, citizens redistricting—councils that come up with these maps in a neutral way, as opposed to the party members sitting in a room and duking it out with cigars. The worry, I think, is down the line, John Roberts might rule that citizen redistricting is unconstitutional.

You have to think about the abuse of supposedly neutral tools for partisan ends. And I think that he could come up with an argument that under the Constitution, that actually that this is supposed to be done by politicians, but you actually had Kavanaugh at the oral argument for the gerrymandering case saying—Well, we have these, you know, I know this sounds really bad, but is it really our role, when you have something like a citizens redistricting commission?—so it ends up being kind of a circular argument.

The case that this is about minority rule, and racial animus is so much more blatant when it comes to the census case that you mentioned. It has always been that the census counts everybody, whether they can vote or not, for example, it counts children, it counts immigrants. And the creation of this question, the citizenship question on the census, which is administered by the Commerce Department, so it’s Wilbur Ross, is the defendant in this case—

WT: Awesome. Wilbur Ross. I love that guy.

IC: Yeah. He’s great. So I mean, there is more and more evidence that this would have a really discriminatory impact, that it would undercount—I believe the number is four million people. You mentioned new evidence that came out in this case. So the new evidence, which was actually discovered in this crazy way, where a political activist, Thomas Hofeller is his name, he dies, and his daughter’s going through his stuff, and she finds on his hard drive all of this correspondence between him and the folks who are responsible for putting together the citizenship question on the census. And so in fact, the ACLU has asked the Supreme Court not to decide the census case—they had already challenged this notion of the asking citizenship.

And again, to be clear, there is evidence that if you ask people about citizenship, it will systematically undercount immigrants, including Latinos, most notably Latinos, and it will end up with maps that overrepresent for white rural Republicans. And we already have a lot of structural advantages for white Republicans—look at the Senate. But we’re talking about here the House of Representatives and state districts that are drawn according to the census. And then you end up finding on these hard drives information that makes it unambiguous that the goal was—put really simply and accurately—white supremacy. He actually said that he drew these maps to be, quote, “advantageous to Republicans and non-Hispanic whites.”

And so the question will be will the court decide this anyway, and say that this is totally within the rights of the Commerce Department to put this on the census. And the census is being put together in October, for 2020 census, which will lead to the next redistricting, or as the ACLU has asked them to do, will they send it back to the lower courts because the Supreme Court isn’t supposed to deal with new evidence. And so this gives them a way out, if they choose to take it, to say—actually, we need the district court, which is supposed to have a trial, look at all the sides of evidence, and thus punt this potentially enormously consequential decision.

WT: My understanding also is that the government had specifically said in arguing this case, okay, we did not do this for political reasons. This has nothing to do with any of that stuff. And then this information from Hofeller makes it clear that in fact, they were doing it for political reasons. And that the government’s testimony to the Supreme Court, or maybe to a lower court, was wrong, was a lie.

IC: The ACLU does say that in their brief to the Supreme Court, they actually say that, according to this new evidence, one of the people who was defending the inclusion of the citizenship question on the census actually gave false testimony. And again, the Supreme Court isn’t really supposed to deal with new facts. They’re supposed to deal with what the law’s supposed to be, how it’s supposed to be interpreted in the abstract. And so I think the best case scenario for, let’s say, the non-white supremacist people in this country, would be to send it back so that they can properly consider all the evidence. And that also gives the Supreme Court a way out. However, we have no idea if they’re going to take this seriously. They may well say that under the Administrative Procedure Act, this is perfectly legitimate to ask people about citizenship. And the consequences of that would be horrific for equal representation under the law.

VVG: Especially with the rise of Stacey Abrams, it seems like people are starting to gain a much better understanding of how voter suppression actually happens, but it is such a bureaucratic issue, or at least a seemingly bureaucratic issue, that is hard to write about—depersonalized, right, it’s about large collectives and not about individuals. It’s difficult to explain how it impacts people. I don’t know if this is a reasonable analogy—tell me what you think. In Wisconsin, after Democrats were elected, lame-duck Republicans went in and redid laws to undermine the powers of the incoming Democrats. And this seems like, in some ways, right, that same kind of retrenchment of power, using a seemingly neutral tool to double down, to legitimize voter suppression—I don’t even know that I think of it as minority rule as much as flat-out voter suppression.

IC: I think it’s both. I think you’re absolutely right. One of the things that Republicans have done that is so effective is to focus on the granular roles of democracy. One reason why it’s hard to pay attention to it is because it’s actually hyperlocalized. It involves these individual jurisdictions. A lot of this is happening at the state or the local level. It’s dry. It’s not romantic, as you say, even though the notion of access to the ballot is, but you know, when Justice Ginsburg dissented in the Shelby County vs Holder case that undermined the Voting Rights Act, that actually was the day that my co-author Shawna nicknamed her The Notorious RBG, and one of the reasons that she was dissenting in the particular manner that she did, which was making the entire court listen to her protest, was because she wanted us to be paying attention to how the rules of the game dictate the outcomes. So we would not have had a heartbeat bill, for example, pass in Georgia, where a majority of voters don’t support banning abortion, support Roe v. Wade, or we wouldn’t have a lot of these state laws that are out of sync even with the most conservative electorates, if we actually had equal representation at the ballot.

VVG: I can’t help but think of, you know, my family is Sri Lanka. And for many years during the Sri Lankan civil war, there wasn’t a census. The consequences of that have been decades. So yeah, it’s horrifying to see how this is shaping up.

You mentioned Kavanaugh and I feel like we’re watching this closely to see which way the court turns now that there’s a conservative majority. How conservative is conservative? What kind of justice has he been so far? And how do these conservative justices—who are not all the same as each other—conduct themselves now that they are in proximity? The longest-serving justice on the court is actually Clarence Thomas, which I was surprised to remind myself of last night. He’s only in his early 70s, and he has been talking about the possibility of reexamining and potentially overturning precedents, and Roe v. Wade is probably the most prominent among the rulings that may be at risk. But are there others? And how conservative do you think conservative is for the current version of the Roberts Court?

IC: I think we have to be viewing all of this as a long game, in the same way that there is a long incremental, systematic attempt to change the rules of the game, to entrench a particular minority, a political white male minority. There is also a long-term strategy to change the Court’s jurisprudence that we’re not going to see just in these first few months, since Kavanaugh was only seated in October. And Gorsuch is only in his second term. So far, and this term, as I speak now, is not over, but so far, there have been some surprising alliances, but the case is, in that you see either Gorsuch or Kavanaugh signing opinions with the liberals, but so far, these are relatively small-bore, relatively low-stakes cases, or ones that don’t really get to the heart of conservative priorities.

I do think that the long-term game is a deeply conservative one.

You also have to think about the role of Chief Justice John Roberts, who’s now sitting squarely in the center of the Court, or at least we assume that he is, and he has always been somebody who looks at the long-term game. The biggest case probably is the census this term, but none of these cases are going to be the ones that are going to have as much political valence as say, if the court was deciding an abortion case, or affirmative action, that might really command people who are not watching deeply in the process here, or whether to uphold the Affordable Care Act. John Roberts must be thinking—based on everything that we know about him—I both have conservative priorities for the long-term project of the Court, and I want Republicans to be reelected.

And right now what’s happening on the left? People are having long-term structural conversations about the court. They’re having conversations about whether we should have lifetime tenure, whether we should change the constitution of the court, literally, how many people is it constituted of? And he’s concerned about the institution’s legitimacy—we don’t know how much or how far, but there are competing priorities here and one of them is: do I want all of the Democrats to be up in arms and to turn up at the at the ballot box because they want to vote against Mitch McConnell and Donald Trump choosing the next Supreme Court justice to replace Justice Ginsburg or Justice Breyer? Do we want to activate people by making them so angry? Or do we want to find some kind of narrow consensus or some kind of punt that would make people pay less attention to the Court and allow us to slowly erode the precedent that way? I do think that the long-term game is a deeply conservative one.

WT: The Court always polls in terms of Americans’ opinion of it much higher than Congress, for instance. But I start to wonder if you have a series of these decisions, like the gerrymandering decision, and the Citizens United decision, people are not going to understand—oh, we couldn’t consider that evidence. If they go ahead and say, yes, the citizenship question goes on, and then the census isn’t going to be taken for another 10 years, and it’s there. And yet we know that there was this political move. And then of course, like, well, on a technicality, we can’t consider that. The court begins to feel more like a distinctly partisan organization than it has ever been in my lifetime. Maybe I’m not thinking about history clearly, maybe it was ever thus. But it really does start to feel different. I don’t know if it feels that way for you.

IC: One of the issues is that the Supreme Court was the deeply conservative institution for, you know, if you think about striking down New Deal legislation throughout the 1920s and ’30s. But I think that people today are thinking about Brown v. Board, they’re thinking about Roe v. Wade, they’re thinking about gay marriage. So for progressives, they’ve long relied on the Supreme Court to stand up for minority rights. And I think, increasingly—and Justice Ginsburg, I think, is one of the people warning of this—that’s not the court that we have. And in fact, the conservative justices who are currently sitting on the court had been part of a movement that—their number one goal is eroding all those victories that I just mentioned, right? They want to undo those, the Warren Court and the Burger Court’s wins for progressive priorities.

And it’s a problem for Democrats. I’ve talked to people who do focus groups with Democrats, and they do feel positively about the Supreme Court. And they’re not critical of it, despite things like Citizens United, and Shelby County, the voting rights case. And so a big question moving forward on the politics of it will be is that going to change? And I think if you’re John Roberts or Brett Kavanaugh, both of whom are movement conservatives, they’re considering that too, right? They want to defuse progressive anger at the court while also aligning with the conservative priorities that got them into this in the first place. And so where do they draw the line is going to be the big question moving forward.

VVG: So we’ve of course been invoking The Notorious RBG throughout this conversation. And you actually wrote the book on Ruth Bader Ginsburg. Would you read a bit of the book for us? There’s a terrific passage where it talks about her writing and editing and her sense of how writing is connected to the law.

IC: Yeah, I love RBG as a writer, so any excuse to talk about her as a literary person—it’s not in this section, but she did study with Vladimir Nabokov at Cornell. She said that she became obsessed with the order of the words as a result of his lyrical voice. This is a section called Red Hot Pen.

VVG: I love it so much. And there’s all this great stuff in there too about her being just a vicious editor.

IC: I could go on and on. Actually one of my lifetime greatest all-time experiences was when Justice Ginsburg officiated at my wedding. And beforehand, she has a couple of scripts that she uses when she officiates at weddings, but she’ll personalize them, or you pick and choose which portions you like. And then she adds her own things, and when we got her Track Changes on what we asked for, when she was editing her own words—I just thought, I’m finally getting to see into one of these merciless edits and the target is herself.

WT: How did you convince her to officiate at your wedding?

IC: Well, I got to know her a little bit through working on The Notorious RBG. We got married two years after the book came out. And we wrote her a letter about how her marriage, which was a true partnership, was an inspiration to ours. And she was kind enough to come to Brooklyn.

Part II: Jay Wexler

V.V. Ganeshananthan: Your protagonist, Ed Tuttle, sees himself as conservative, although he’s amusingly bored by what he sees as more dim-witted right-wing justices on the Court. And he’s bored by what’s going on in the Court generally. And that seems like a refreshing point of view—it’s certainly not what I was expecting when I was reading about a Supreme Court Associate Justice, you know? Do justices get bored with what they’re doing? Does Tuttle’s sense of humor and self-reflection—is that a thing that you associate with the justices?

Jay Wexler: Not really, no.

[laughter]

Whitney Terrell: In order to write this novel, I had to invent someone!

JW: I’m not hanging out with the justices much. I do know a couple things. Like Justice Kagan is a genuinely funny person. Justice Thomas actually has a sense of humor. It’s interesting. Justice Thomas never speaks from the bench, of course, but one thing you get to do as a Supreme Court clerk is, every group of clerks for each justice gets to take every other justice out for lunch once. So we got to at least talk to everybody. And Justice Thomas was by far the most sort of normal person you can just chat with and he made jokes, he laughed at our jokes. So he was a funny guy.

WT: That is so surprising to me. I did not know that.

JW: It is surprising to most people when they hear it. I want to be clear, his jurisprudence makes me weep, but he does have a sense of humor. And it’s also true, Justice Souter quit the court long before he needed to. And part of the reason people think he did that was because he just hated Washington, D.C. And he liked hiking in New Hampshire, he loves New Hampshire. And so maybe there’s some sort of analogy there. But did they get bored with what they’re doing? I very much doubt it. I don’t think they have that self-consciousness that Tuttle ends up with during his midlife crisis.

I’ll tell you this story. I sent the book to Justice Ginsburg. And I described it—I don’t think she read it, but I described what it was. And she wrote back and she said, Did you name your justice after this famous Judge Tuttle, who was on the lower courts for many years? Because I think he would never have been the kind of person to have a midlife crisis. As though having a midlife crisis is a terrible thing no sane person would ever have!

WT: So speaking about the humor quotient of the justices, Tuttle thinks about the way that the Justices compete to get, in the court transcript, the bracketed word laughter inserted. You’ve written an article about this also, in real life, outside the fiction. And that article is mentioned in the book. Maybe you could talk about the relationship between that scene in the book and the article that you wrote.

JW: Right. So I have Tuttle basically make fun of me in the novel. In 2005, the court transcriptionist, for the first time, started naming the justice who asked the question. Prior to 2005, if you read the transcript, it just says Justice, colon, and then the question. The transcript has always noted when there’s laughter in the courtroom. But before we didn’t know which justice got the laughter, because it just said Justice. But in 2005, when they finally started identifying which justice asked the question, it clicked for me one day that we could now study which justice got the most laughter. And so I did the study of the 2004 or -05 term—it took me like three hours to do. Justice Scalia got by far the most laughs, and I published this thing in a kind of obscure legal academic journal. And, a couple people looked at it and thought it was cute. But then Adam Liptak, in the New York Times, read it and loved it, and he wrote a front page story about it in the New York Times on the last day of 2005. And all of a sudden, I was on Nightline, and everybody was talking about it.

Then Twitter came along, and I decided that I would that I would do the same thing on Twitter. So I got @SCOTUShumor, and I count the laughs and I update people in real time etc., etc. And I do hear that the justices sometimes make reference to the stupid study that I do, which always makes me feel good, but you know, is absurd. So anyways, in the book Tuttle has these doofus fellow justices who are always going for the laughter so that they can compete to be in first in my standings, and Tuttle thinks it’s ludicrous. That was kind of meta—an interesting thing to do.

Tuttle started as a short story. I published a short story called “The Adventures of Ed Tuttle, Associate Justice,” which takes place right before the novel starts. He’s in Jackson Hole for the summer. And he rediscovers his sexuality over the summer. There’s some reference to that in the novel. And he goes to a bar, and somebody asks him—what do you do? And if you say Supreme Court Justice, well, that’s kind of a good line. And so he picks up women and he has a great summer until this sort of rock star Liz Phair character dumps him and makes him feel destroyed. That’s how the short story ends. People liked the short story, and, you know, I had the character and everything, so that’s where the novel started.

VVG: You clerked for Ruth Bader Ginsburg. So what in the hell was that like?

JW: Fair question. So it was a year, right after I graduated from law school—it was a fabulous job. It was just incredible to be working there. You’d walk in during the day and walk to your office through the marble and the plush carpeting and all the history, and it’s pretty amazing. And working for Justice Ginsburg was a fascinating experience. A law clerk at the Supreme Court has basically three jobs. One is working with all of the other clerks for all the other justices to write memos on petitions to try to tell the court which cases they should maybe take and which cases they generally, definitely should not take. That’s a sorting process, because there are 7,000 petitions, and they only grant 70 cases. So you write memos, and that’s a big part of the job. A second thing you do is you prepare the justice that you’re working for—for me, Justice Ginsburg—for the cases that are coming up. So you write what’s called the bench memo, a 15-page memo on each case, explaining what you think the issues are, and how the case should come out. And then the third thing you do is once the justice you work for is assigned an opinion, you help draft the opinion and then rewrite it a million times, because she tells you that what you’ve done is not right.

It’s a very odd job to be working for a Supreme Court Justice two years out of law school, but that’s the way it always is. And the idea is you don’t want somebody who’s developed their own practice and has their own opinions and things. You want somebody who’s going to do your work for you, basically. And that’s what the clerk does for the judge. The justice decides the opinion, decides how she’s going to vote on the case, and what the opinion is going to look like, and all the final language and everything. So you’re really totally working for the justice. Justice Ginsburg as a boss, was pretty interesting. One thing about her was that she knew very well how she was going to come out on cases. So it was not a situation where she was going back and forth, and you had to talk through all the different positions that she could take. Because some justices or judges are like that—I had a clerkship before Justice Ginsburg. That judge was more waffly. But Justice Ginsburg had been on the bench a long time—she knew which way she was going. And that made it fairly easy, actually. Some people spend all night long at this job. But I left at 6:30. I went home for lunch every day because I live right near the Supreme Court. It was actually quite a pleasant job.

Now, Justice Ginsburg—she’s a boss that’s kind of like what she probably seems like—she’s very arm’s length, she’s very quiet. She talks very slowly. She sits in her office, does her work. The clerks sit in a different office. And it’s not like she came back and sat on the couch and put her feet up on the coffee table and chitchatted with us. If she wanted us to come talk to her, she’d buzz us on the telephone, which was frightening. And you’d be working and typing and all of a sudden the phone would go BAA-AAA! You’d have a small heart attack, take some deep breaths and answer the phone and then go talk to her. She’s very kind. When we did talk to her, we celebrated birthdays and things like that. But it was kind of an arm’s length, low-key kind of job.

WT: So obviously our first guest wrote this book, Notorious RBG, which has been part of Ruth Bader Ginsburg’s emergence as a pop culture icon and phenomenon. Obviously, she wasn’t that when you were clerking for her. What do you think about her becoming this person who appears on coffee mugs, and satchels—

VVG: And is played by Felicity Jones—

JW: I know, right? It’s crazy. It’s true, because when I worked for her, she was a famous lawyer, and if you walked around the court with her, people would recognize her. But if you went anywhere outside the surroundings of the court, people would not have any idea who she was. So watching her become this icon has just been amazing. Not only do I have a mug, but my favorite thing I have is a finger puppet. Somebody made a finger puppet and I bought it and sometimes I walk around with it. It’s great.

VVG: I think one of the great things about the book is that it’s—and I mean this in the best possible way, as someone who self-identifies as a nerd—it’s unabashedly nerdy. Tuttle is bored by the court, but there are also invented court cases like Sexy Slut, there’s gestures to the court’s history. So that line between invention and history, you’re traveling it very carefully, and in fun ways. How did you figure out how that was gonna be comfortable for you? As I was reading, I thought, I feel like I know a reasonable amount about the law, but I’m pretty sure, of course, my friends who are attorneys or teach at law schools, they’re reading Tuttle in the Balance, and they’re getting so many more Easter eggs than I am.

JW: The line comes from thinking a lot about what it would be like to be a Supreme Court justice. It’s such a powerful job, but at the same time, unless you’re RBG now, nobody knows who you are. So you’re famous in a way, but nobody can recognize you. And your job, honestly, is not that hard. It’s not the kind of job where you have to work all the time. And so you could, in fact, do all sorts of weird things—you could live a whole other life.

It was always intriguing to me to think about the freedom you have in that position. You’re answerable to nobody, so you can do whatever you want. And you have the time and the anonymity to do it. So why not? What would it be like to be a justice and then be like, Ah, I think I’ll go to med school? Why not do that? So that always fascinated me as I was there, and then later as I was teaching about the Supreme Court. So that’s what I wanted to explore in the novel.

Transcribed by https://otter.ai and Damian Johansson. This transcript has been edited and condensed by FnF.