Rapid Response Teach-In to Commemorate Passing Supreme Court Justice Ruth Bader

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Supreme Court Justice Ruth Bader Ginsburg was a dear friend of American University Washington College of Law. On September 24th, 2020, AUWCL held a “Rapid Response Teach-in” to commemorate her passing. The event gathered students, faculty, and the public to remember her legacy and look toward the future. The teach-in featured a number of experts who discussed both ways Justice Ginsburg influenced the Court and what the Court has lost now that she is gone. Speaking at the event were five distinguished AUWCL professors: Susan Carle, Lia Epperson, Professor Amanda Frost, Steve Wermeil, and Elizabeth Beske. The speakers participated in a discussion led by Professor Fernando Laguarda, the Faculty Director for the Program on law and Government. The event was a special way for the AUWCL community to memorialize Justice Ginsburg — an individual who truly lived out the school’s philosophy to “champion what matters.”

Each panelist took turns speaking about some aspect of Justice Ginsburg’s legacy. First was Professor Epperson, a nationally recognized expert in civil rights, constitutional law, and education policy. Prior to coming to AUWCL, she served as a Senior Fellow for the Center for American Progress, focusing on federal civil rights enforcement of education policies and practices. Professor Epperson called her one of the “chief architects of a litigation strategy to break down patriarchy barriers in terms of the American legal system. She did this in her role as a co-founder of the Women’s Rights Project at the ACLU, but really it developed as a product of her own experiences.” Professor Epperson described the many obstacles Justice Ginsburg overcame along her path to the Supreme Court, including receiving no employment offers from New York City law firms upon her graduation at the top of her class from Columbia Law School. These experiences drove her to achieve greater equality for women both in the legal field and American society more broadly.

Next, Professor Susan Carle walked through key holdings from Justice Ginsburg’s iconic jurisprudence. Professor Carle, who is also a Vice Dean at AUWCL, teaches and writes about civil rights legal history, employment discrimination, and the legal profession's history and sociology. She provided an overview of how Justice Ginsburg achieved incremental change over the course of her career, so that by the end of her time on the Court she had redefined the legal rights of women. Like Professor Epperson, Professor Carle emphasized the role that Justice Ginsburg’s lived experiences allowed her to empathize with people of many backgrounds. The positive impacts of her legacy are by no means limited only to women.

Following Professor Carle’s remarks, Professor Steve Wermiel stepped in to provide a preview of the upcoming political struggle that will determine who replaces Justice Ginsburg on the Court. Professor Wermeil serves as a Professor of Practice in Constitutional Law at AUWCL is an expert on the First Amendment spoke next, writes a monthly column on SCOTUS Blog explaining the Supreme Court to law students, and has co-authored multiple books about the Supreme Court. His insights into the political dynamics at play were reflective of his deep knowledge of this area of law and politics. He started by sharing a personal story about Justice Ginsburg, and said she was highly supportive and encouraging as he wrote one of his books about the late Justice William Brennan’s life. He then went on to discuss the partisan nature of the nomination process, saying “Democrats can scream and cry about it not being fair. . . but ultimately the Republicans have the majority votes to essentially decide how the hearing [process] goes.“

Professor Elizabeth Beske teaches Civil Procedure, Federal Courts, and Constitutional law at AUWCL. Prior to teaching, she clerked for the U.S. Court of Appeals for the D.C. Circuit and Justice Sandra Day O’Conner on the United States Supreme Court. During her time as a clerk for Justice O’Conner, Professor Beske had the privilege to work directly with Justice Ginsburg and her staff. Professor Beske primarily discussed the role the Court might play in the upcoming election and how the Court's new vacancy could affect that role. She said “the Court itself has become a central issue in the most bitterly partisan presidential election in our lifetimes.” Because the Supreme Court has become so central to the election, justices are increasingly becoming concerned about its political legitimacy. Professor Beske explained, “the Supreme Court is an unelected body that lacks both the power of the purse and any means of enforcing its own mandates. It is a uniquely vulnerable institution politically.” Because of this, courts, and especially the Supreme Court, are hesitant to become too entangled in political disputes. In this respect, Justice Ginsburg’s passing has created a unique dilemma for her fellow justices.

Finally, Professor Amanda Frost discussed proposals that have been floated by academics and Democratic policymakers to restructure the Supreme Court if Joe Biden wins the presidential election and Democrats retake the Senate. Professor Frost’s vast experience in the federal judicial system has made her a uniquely qualified expert on federal judicial jurisdiction. Prior to coming to AUWCL, Professor Frost clerked for the U.S. Court of Appeals for the D.C. Circuit, litigated at multiple levels of the judiciary as an attorney at Public Citizen, and worked for the Senate Judiciary Committee.

Professor Frost first directed interested viewers to consult Article III of the Constitution to form a baseline understanding of the limits of court jurisdiction, and the ways those limits are defined. Under Article III, Congress wields broad power to define the characteristics of the federal courts, including the Supreme Court. Therefore, many experimental ideas have been proposed, both by politicians and academics, to reform the Supreme Court after President Trump leaves office. These reform proposals are, of course, the exact sorts of reforms the Supreme Court justices might fear would result from the politicization of the Supreme Court, as discussed by Professor Beske earlier in the event.

Altogether, the speakers painted a detailed picture of the state of the Supreme Court following Justice Ginsburg’s passing. We are grateful to all of our esteemed guests for providing an excellent opportunity for students and members of the public to become better informed about the specific mechanics and technicalities of the Supreme Court nomination process.