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The legacy of Ruth Bader Ginsburg

Yahoo Finance Editor-in-chief Andy Serwer, HuffPost Washington Bureau Chief Amanda Terkel, Yahoo News Editor-in-Chief Dan Klaidman, and 'Sisters in Law' author Linda Hirshman discuss the legacy of former SCOTUS justice Ruth Bader Ginsburg.

Video Transcript

ANDY SERWER: We're now joined by Linda Hirshman. She wrote a book called Sisters in Law about Ginsburg and Sandra Day O'Connor, the first two women to serve as justices on the Supreme Court. Linda, thanks for joining us.

LINDA HIRSHMAN: Thank you for having me.

ANDY SERWER: I guess the top line question to you would be, what is Ruth Bader Ginsburg's legacy?

LINDA HIRSHMAN: I think her legacy stems from-- unexpectedly, since she was so famous as a justice-- but I think her legacy stems from her years at the ACLU between 1970 and 1980, when she basically flipped the 14th amendment and got the Supreme Court to say that the 14th amendment applied to sex discrimination.

10 years before she started her crusade in 1971, the Supreme Court had ruled the exact opposite. They had said that the 14th amendment explicitly does not apply to women, to sex discrimination. So to achieve that kind of change only 10 years after the prior precedent was laid down was amazing, and I think that's her major legacy-- equality for women under the Constitution.

DAN KLAIDMAN: Linda, one of the things that we've heard people say about Justice Ginsburg in that phase of her career is that she was enormously strategic-- that she understood the huge challenges she was up against. Arguing in front of nine male Justices, for example. Talk a little bit about what her approach was and that kind of strategic side of her.

LINDA HIRSHMAN: Well, she followed the example of her mentor Thurgood Marshall. The NAACP had gradually brought about constitutional protections against race discrimination by bringing small, not-too-threatening cases at the beginning and establishing the precedent and then building on the prior precedent to make bigger social change as you went along, and that's exactly what she did.

So she started out with a little tiny case that I always say probably didn't affect anyone other than the two individuals involved in the litigation. It was about an obscure provision of Idaho testamentary law, and the law specifically said, we have no basis for this, but we chose the man over the woman to administer estates, basically. And she got the court would say you can't discriminate on the grounds of sex based on nothing. You have to have a fair and substantial reason for doing it.

That was a small change, that affected very few people but it set in motion the engine of precedent and constitutional precedent. And then the next time she asked for a bigger change in military benefits, and that time after that she asked for a very big change in the provisions of the social security law for widowers in addition to widows. So that was her strategy and it worked brilliantly.

If you look-- I looked at all those archival stuff when I was writing my book, and if you look at what the Justices said to each other and to their clerks when they were looking at the later, much bigger cases, you actually have Justice Powell and Justice Stevens say, we would never have ruled in favor of equality in this case, but Ruth Bader Ginsburg has tied our hand.

AMANDA TERKEL: Linda, could you talk more about how-- there have been so few women on the Supreme Court-- how the women who have been on the court have supported each other and helped each other, and do you expect that to continue with Trump's nominee? He says he's going to pick a woman, but it seems like whoever he picks will be far, far more to the right than any woman who has ever served on the court.

LINDA HIRSHMAN: So the doctrinal distance between Sandra Day O'Connor and Ruth Bader Ginsburg, who served for the longest time together on the court, was nothing like the chasm that will separate any Trump appointee from the other women that are serving on the court now, the other two women. O'Connor was pretty conservative and she did not vote with Ginsburg on a lot of things, but when it came to women's issues, they voted for the woman with one exception every time it came up in the 12 years that they sat together.

So there was a real sense of camaraderie on that subject. And the world has changed exponentially since the Republicans put Sandra Day O'Connor on the court in 1981. I say she was pasture sell date when they put her on because the polarization that we've been talking about this hour had already started to happen. When she went on, she was the last product of a different era.

AMANDA TERKEL: And so-- We don't know the nominee yet, but you don't think based on the names that are out there that we will see this nominee possibly voting with the other women on issues of women's equality as a voting block anymore.

LINDA HIRSHMAN: I think it's unimaginable. America has changed constitutively in the last 20 years and it's just it's absolutely unimaginable.

- Linda, I want to touch on another facet of Justice Ginsburg, and that is the whole pop culture RBG phenomena. I mean, there's certainly no other Supreme Court Justice has produced this kind of following in this way and really not many other politicians at all, even. Where does this come from? What does it mean, and did it surprise you?

LINDA HIRSHMAN: It did not surprise me because I was watching the revival of the feminist movement happen anyway, right? I mean, I am from the original 20th century feminist movement and we had a long backlash period, but I could see it was reviving in 1,000 ways, especially the new technology. So what happened was a very canny LGBTQ person trying to commission it deployed the new technology-- it was a Tumblr page-- to create the persona of the notorious RBG, and it was a political movement.

It captured the rising tide of the revived feminist movement perfectly. Like the pink pussyhats and, like, the #MeToo movement-- which was also very much a product of the new technology-- there was a new feminism rising, and these young women like Shana and Irin Carmon who wrote the "Notorious" book with her were coming online and they had been the products of women's studies classes and they had been reading Catharine MacKinnon's stuff until they were ready to burst out, and she gave them a perfect example.

One of them said to me when I was doing the research for my book about it, she was so old and still so radical. They were really looking for that. She filled that position perfectly, and they were right-- she was still so radical.

DAN KLAIDMAN: Linda, one of the things that all of the tributes and appreciations have said about Ruth Bader Ginsburg is that her life-- her professional life-- reflected the evolution of women in the law. Of course, when she got out of law school she couldn't get a job. She couldn't get a clerkship. I think she was rejected by Felix Frankfurter who thought that she looked very good on paper, but couldn't bring a woman into her chambers.

And then she became our secretary. But through the force of her intellect and drive and personality, she ended up on the Supreme Court. In terms of her legacy, and what she did for women and the law, where we are women right now at this particular moment? There have only been a small number of women on the Supreme Court. I don't know how well they're represented as partners in law firms today, but is there anything close to equality or not yet?

LINDA HIRSHMAN: There is not, and it shows the fact that culture changes very slowly, and I always say most slowly, when it comes to gender relations because you cannot move to the suburbs and get away from your life. So there is a tremendous amount of resistance to sex equality on the ground, and you see that in the law firms which have only something like 17% female partners even though women have been graduating from law schools in larger numbers than men have for decades.

So it's a very, very slow process. The decision that forbade sexual harassment in the workplace was handed down by the Supreme Court in 1986, and yet we found Harvey Weinstein doing it 25 years later with very few consequences until the revived feminist movement and the new media began to change the culture. So it's slow, but because the law changed and said that sexual harassment was illegal in 1986, when the culture is ready to change, it has something to hang its hat on.

So the new order had these precedents and Gretchen Carlson who actually started it by suing Roger Ailes. Had a lawsuit against him because the law forbade it even though the culture wasn't enforcing that. So it's very slow, but I think that young women are going to surprise your political pundits who preceded me and have a real impact on this election.

I think the fact that this beloved political iconic figure, Ruth Bader Ginsburg, is now on the table, so to speak, is going to bring a lot of these young women who, being young, normally, don't vote in large numbers to the polls. So that's a long answer to a short question. But I think that's her legacy for the future is not just the constitutional revolution she engineered, but the way that she instantiated and represented the revival of the feminist movement with these new young women coming along.