My second choice of sessions was, partly, sentimental, because Ruth Bader Ginsburg is such an inspiration for feminists like me and I also wanted to see ABC journalist Fran Kelly strut her stuff in person. I wasn’t disappointed. The session was subtitled, Amanda Tyler In Conversation With Fran Kelly, and was framed as follows:
Justice Ruth Bader Ginsburg’s passing last year — just as her book, co-authored with her former law clerk Amanda Tyler — was heading into production, was met with a public outpouring of grief. Tyler shares RBG’s optimistic vision of a just society and a ‘more perfect union’.
This is slightly incorrect, and stems from the fact that the session had been scheduled for last year’s cancelled festival. Ginsburg, “the notorious RBG”, or just RBG as I will call from here on, didn’t die last year, 2021, but in 2020. As a result, Ginsburg and Tyler’s co-written book, Justice, justice: Thou shalt pursue: A life’s work fighting for a more perfect union, instead of being relatively new off the press has now been out for well over a year. That, I think, changed somewhat the session’s focus from the book (though it was still the cornerstone of the discussion) to something wider – to RBG’s legacy and America today, as much as the book itself.
This session, unlike my first, was in the largest space in Kambri, and it was packed. RBG has a huge following. I have written briefly about her before, in a Literary Week post where I mentioned seeing the documentary RBG. I wrote that RBG “is a fascinating woman with an inspiring capacity for clarifying the complex”.
This was another engaging session, in a different way.
Kelly leapt right in with a big question: given RBG’s “wonder-woman status”, did Tyler feel pressure working on this book with her! Well yes, admitted Tyler, even though she’s in her late 40s now! But working with RBG was “so special” and the work was so important.
Regarding RBG’s health, Tyler said, answering another question, that yes, they were aware that “her death was coming” but RBG had tried so hard “to stay alive through the election and to the inauguration” so that, hopefully, a Democrat would win and be responsible for her replacement. (Those of you who follow American politics will appreciate all this.)
Kelly asked what Tyler saw as RBG’s most important role or characteristic. She responded that RBG recognised that she was talented and she used her talent not to make money but to make the world a better place. This was a point she would make to young graduates whenever she spoke at graduations. This theme of improving the world, improving America, improving the lot of others, recurred throughout the session.
RBG had graduated at the top of her class but couldn’t get a job in a law firm – because she was a woman. This resulted in her ending up in the court system, which, Tyler said, turned out to be a good thing. (As it was for Sandra Day O’Connor, the first woman to serve on the US Supreme Court. RBG was the second.)
Next up was discussion about RBG’s early court work. Her first gender law case was Moritz v. Commissioner in 1970, concerning a man who’d been refused a tax deduction for hiring a nurse to care for his elderly mother, a deduction he would have received had he been a woman. The important thing about this – besides that the law also discriminated against men – is that when the case was won the Government appealed, which got it to the Supreme Court.
RBG fought many sex discrimination cases during the 1970s – her favourite being the Stephen Wiesenfeld case. All this, said Tyler, would have made her significant even if she’d never been appointed to the Supreme Court.
The discussion identified many of RBG’s skills and strategies. She had a capacity for consensus; she chose multi-directional cases; and her superpower was taking cases as a litigator to the Supreme Court.
Kelly asked whether RBG was disappointed about being “the great dissenter”. Tyler, as she was wont to do, answered in a round-about way. (Is this lawyer style?) RBG, she said, wanted to be a judge, she wanted to be in public service. And, she did write some great majority decisions. But yes, she was disappointed to be in the minority at the end of her Supreme Court career. She wanted to leave a “road map”.
Kelly then asked what she thought of her celebrity status, “the notorious RBG”. No one would have predicted it, Tyler said, but it was the result of her dissent in a Voting Rights case – Shelby County vs Holder. Tyler quoted RBG from this case:
Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.
RBG loved, said Tyler, that she was inspiring a younger generation. She also saw the significance of an older woman becoming a superstar!
Then Kelly got to the sensitive question: should RBG have stepped down earlier to prevent what ended up happening – her replacement being chosen by Trump and the Republicans. Tyler replied that during Obama years, she was given clean bill of health, she was in her stride, and Republicans had hold of Senate so she felt they may not have supported the “right” replacement.
Tyler then turned to something that she mentioned many times during the rest of the session, the vote. She said that exit polls in the 2016 election (the Trump one, of course!) found that the no. 1 reason Republicans gave for voting was the Supreme Court, but this was barely mentioned by Democrat voters.
Tyler hadn’t answered Kelly’s question! So she pushed a little more! Tyler said she believes that RBG (like most people) anticipated Hillary Clinton would win.
Kelly turned to the Supreme court’s overturning of Roe V. Wade. Tyler said – meaninglessly, really – that if Hillary Clinton had won everything would be different! She said that she thinks RBG would be “apoplectic” at what was happening, because RBG believed that true gender quality depended on women having control of their reproduction.
There was more discussion about this, and then Kelly turned to the fear that other rights could fall, as hinted by Justice Clarence Thomas. Tyler does fear that rights like contraception and same-sex conduct, for example, are at risk. It is, she said, a difficult time for this county that sees itself as “a country of opportunity”.
Kelly asked whether this can be stopped, to which Tyler returned to her mantra: the vote. People must vote “as if we care about these issues”. The issue is the Senate and the filibuster rules, and she’s not seeing enough impetus for changing Federal law. The problem is that the US is becoming less unified – life is becoming increasingly different from state to state. So, for example, the abortion law changes are causing young women to seriously think which state they choose to go to college in. All this risks entrenching the spilt in American society.
The current Supreme Court is young, so will have its current make-up for decades. Biden has considered a commission to look at expanding the number of justices. Congress could do it but there are obvious ramifications to this. Another idea is that of staggered terms, but this requires changing the Constitution.
Kelly asked about RBG’s “striving for a more perfect union”. This, said Tyler, comes from the Constitution. It invites ongoing struggle and effort to improve American life. RBG saw there was so much to be done. The Constitution, said Tyler, is based on people being able to live their lives “based on individual capacities”, but the equality implicit in this is not enshrined.
Kelly asked Tyler for her favourite RBG quote – there are many out there – but Tyler responded with a personal experience. When, as a nervous new mother she was planning to return to work, she asked RBG for advice. The email response was one line: “Where there’s a will, there’s a way”. Love it.
Finally, Tyler commented that RBG lived a balanced life, and loved opera.
The Q&A covered a few issues which I’ll just dot point:
- Compulsory voting: Tyler is interested in this idea, but said even just making election day a public holiday would help. Kelly, said, what about a Saturday (as we do)!
- Conflict of interest issue in Supreme Court (eg re Clarence Thomas’ wife): the Supreme Court is not bound by same rules of ethics as the rest of court system. Thomas has not recused himself so far in conflict of interest situations.
- RBG’s advice for new generation of law students: Tyler gave two: Don’t just think about the courts, also think about electoral and legislative arenas; and Play the long game.
- ERA (Equal Rights Amendment): RBG wanted this in the Constitution.
- Favourite moments with RBG: both related to opera!
Tyler said that in her last conversation with RBG – August 2020 – RBG expressed concern about how the pandemic would affect the world’s children. Even at the end of her life, Tyler said, RBG was thinking about others and the future.
Canberra Writers Festival, 2022
Her last words: The inspiring life and legacy of Ruth Bader Ginsberg: Amanda Tyler In Conversation With Fran Kelly.
Saturday 13 August 2022, 12-1pm