Joan Biskupic Recounts "20 Years Of Closed-Door Conversations" with RBG

The last "one-on-one session in her chambers" came in January.

|The Volokh Conspiracy |

Joan Biskupic has published a lengthy profile of her twenty-year relationship with Justice Ginsburg. It is titled, "20 years of closed-door conversations with Ruth Bader Ginsburg." Much of the material appears in Joan's excellent books and articles. But there were a few bits I don't remember seeing before. I will highlight them here.

First, Joan last met with RBG in January 2020:

In my last one-on-one session in her chambers, in January 2020 as a fire crackled, she had more pressing health concerns on her mind: "I'm cancer free. That's good." A year earlier she had undergone lung cancer surgery and, a few months after that, had endured a second pancreatic cancer scare.

Does this statement mean Biskupic and Ginsburg were out of touch after January? Most of Joan's post-Term reporting concern events that happened after January. Most, but not all. And there may have been sessions that were not in chambers–especially after COVID shut down the Court. We'll see next year if Biskupic continues to publish leaks, even without RBG.

Second, Joan addresses a common complaint: RBG used the press to speak to her colleagues.

On occasion, readers questioned whether Ginsburg was trying to send a message to the other justices through me. I brushed off that suggestion. Ginsburg was able to speak her mind and skilled at persuasion. And she never knew for certain when anything she told me would be published.

I'm not so sure about the last part. Media savvy people know what the money quote will be. When I speak to a reporter, I can usually get a feel for what will, and will not be published. Ginsburg's "faker" line, for example, was bound for the front pages.

Third, Biskupic offers these remarks about Kagan. I don't recall seeing these precise phrasings before:

She also enjoyed watching Kagan spar rhetorically with Chief Justice John Roberts in the behind-the-scenes drafting process. Kagan "is just a delight," Ginsburg told me, "and very solid on substance."

Over the years, I noticed RBG praised Justice Kagan fairly often. But I can't recall seeing frequent praise of Justice Sotomayor. In big cases, Kagan would be assigned the dissent, and not Sotomayor. I'm sure this sleight was noticed.

Fourth, we learn that Justice Ginsburg broke her ribs a second time in 2013. (She broke them the year before, during the ACA deliberations):

The physical resilience of Ginsburg, then 79, continued to amaze me. When I went to see her at the close of the next year's session, in 2013, I offhandedly asked whether she had again fallen. I did not expect the answer I received.

"Yes, I fell," she said. "It was almost identical" to what had happened a year earlier. "I knew immediately what it was this time. They wanted to send me to … the emergency room, and I said, no, absolutely not. … There's nothing you could do. You just live on painkillers for awhile."

I don't believe this injury was disclosed to the public. In 2012, she also delayed in telling the public about her broken ribs.

Fifth, Joan recounts an episode when President Obama invited RBG to lunch in 2014. Was he trying to nudge her to retire?

In 2014, I received a tip that Obama had privately invited Ginsburg to lunch a few months earlier. I could not help but wonder whether Obama was exploring the possibility that she might soon retire. I asked the justice how their time together had gone….

Ginsburg rejected my questions about whether he might have been fishing for any sign, as they dined alone, of her retirement plans.

"I don't think he was fishing," she said.

When I asked why she thought he had invited her, she said, "Maybe to talk about the court. Maybe because he likes me. I like him."

In November 2014, the Democrats would lose the Senate. Perhaps this was a move in advance of that election, such that Ginsburg's replacement could have been picked over the Summer of 2014. At the time, the Democrats had a slim, 53 seat majority.

Biskupic does relay a delightful anecdote:

"They've got a very good chef at the White House," Ginsburg began. "The problem for me is the President eats very fast. And I eat very slowly. I barely finished my first course when they brought the second. Then the President was done, and I realized that he had important things to do with his time."

Nina Totenberg told a similar story in her profile:

Ruth loved food. She may have been 85 pounds soaking wet toward the end of her life, but she loved to eat. Slowly, very slowly. But God help you if you tried to take her plate way before she had eaten every last morsel of food on the plate.

Sixth, Biskupic relays some heart-felt comments from the wake of Justice Scalia's passing.

"My first reaction was I was supposed to go first," Ginsburg later told me. "I'm three years older. My second thought was, well, we all have to go sometimes."

Referring to Scalia's apparently dying in his sleep, she said, "It's the best you can do."

Apparently? Come on. Are we back to the Pillow Theory?

Seventh, RBG recounts a defeat from a 2011 CivPro case:

I told her that Scalia had once described her as "a tigress on civil procedure."
"She has done more to shape the law in this field than any other justice on this court," he had told me. "She will take a lawyer who is making a ridiculous argument and just shake him like a dog with a bone."

"I wish he had listened to me more often," Ginsburg responded during our January conversation.

She shuddered as she recounted a 2011 case in which, she said, Scalia and other conservatives had "picked up" enough votes to deprive her of a majority on a civil procedure issue. Before that case, she told me, "I was really on a roll."

I scanned through the cases from OT 2010. My guess is J. McIntyre Machinery, Ltd. v. Nicastro. The court divided, sharply, about whether a consumer could sue a foreign manufacturer in state court over a product sold in the United States. Justice Kennedy wrote the plurality. Justice Ginsburg dissented, joined by Justices Sotomayor and Kagan.

NEXT: Highlights from Trump's Interview with Woodward Regarding SCOTUS

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. I’m sure she was a lovely woman, but the behind-the-scenes look cements the fact that Justice Ginsburg was terrible for the court. She was a judicial activist of the worst kind, largely (although not solely) responsible for the politicization of the court and the court usurping legislative authority.

    She should have stayed in private practice and been kept far away from a seat on the judiciary.

  2. Does the sentence “I’m sure this sleight was noticed” contain a misspelling or a hint of further intrigue?

    1. The more interesting part to me is that when push came to shove, RBG apparently felt it was more important to have quality work product than to bow to identity-based quotas.

  3. The Ginsburg lesson for liberals is going to be to never again let a justice die on the bench. That was probably her biggest gamble and mistake. Instead of retiring and spending out her last 10 years as a senior judge doing the lecture circuit under an Obama administration and Dem Senate, her seat very well might end up being “flipped” (no seat actually flips, there is no presumed “count” on the Supreme Court, and assertions that it matters are just stupid and partisan.)

    Sometimes in life when you gamble, you lose. That is what Ginsburg did. Once all the fanfare is done this will be one of the main lessons the left (and perhaps right) walk away with.

    1. It’s not even that — I wonder about her cognitive abilities hearing cases in a hospital bed. The story about her mistaking Sunday for Monday — that’s one thing, but not remembering you hadn’t delivered a decision?

      1. I’ve worried about her cognitive abilities for the last 30 years.

  4. Good to see you back, Josh. I was ready to send paramedics to check on you when you went a whole day without spamming the blog with more of your self-aggrandizing disparagement of RBG.

    1. With the media engaged in so much hero worship someone needs to be thinking about the other side of the historical record.

      1. Where was the hero worship of Scalia?

        1. Someone who dies of cancer will obviously evoke different reactions than somebody who’s murdered in his sleep.

          1. Not murdered, just executed.

  5. “”They have never been a 13-year-old girl.”

    Neither have the 30 million girls aborted since Roe v. Wade.

    Her empathy didn’t extend to them, in fact she was a major factor in their “legally sanctioned” deaths.

  6. I wonder how truthful RBG was in January when she said she was “cancer free.”

    1. Well, that’s certainly an important issue now.

  7. Apparently? Come on. Are we back to the Pillow Theory?

    My god Blackman is an idiot and a dishonest snake.

    Joan is just being accurate. No one was present, so it’s also possible Scalia was awake when he died of natural causes. But, sarcasm free, he apparently died in his sleep.

    Blackman feels it proper (after having insulted RBG unfairly in an earlier post) to now suggest that someone who has not, so far as I know, ever subscribed to any conspiracy theory involving Scalia’s death is implying a conspiracy involving Scalia’s death. You are a creep, Blackman. Surely your position is strong enough to attack Joan without just making stuff up.

    And, yes, I called him an idiot and snake, because he is. His RBG insult, his bizarre highlighting and interpretation of “apparently” (which wasn’t emphasized in the original, btw), and his constant Trump bootlicking here at the Blackman Conspiracy is more than enough evidence to justify the aspersions.

  8. Thank you for sharing such information with us. Dreams About Serial Killers

Please to post comments

Comments are closed.