The Notorious RBG, RBG and the beer bros, and Aaron Burr ruins everything again.
Ruth Bader Ginsburg passed away. So this issue is going to largely talk about "the Notorious RBG" as she became known on the Internet. I'll start with her advice for life and then we'll talk about RBG and her adventures with the beer bros of Oklahoma State University.
We'll end things by dunking on Aaron Burr some more and talking about the filibuster.
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The Notorious RBG
At this point, you're probably saturated with media about the life and achievements of Ruth Bader Ginsburg. And I'd be remiss if I didn't talk about a few of them. She was like an action hero that shattered glass ceilings.
She started law school with an infant at home. Law school is hard enough without having to manage that kind of responsibility. And at that time in particular what she was doing was real trailblazing for a new mother. And she excelled at law school.
RBG was the first woman to be on both Harvard and Columbia's law reviews. When she graduated from law school she started a clerkship while also having a 4-year old child at home, something that at the time was unthinkable. She founded the Women's Rights Law Reporter which was the first journal to focus exclusively on women's rights. In her career as an attorney, her arguments persuaded the Supreme Court to take gigantic strides towards equal rights for women. And she did all that before becoming a Supreme Court Justice in 1993.
But these are things you all already know so instead of focusing on that I want to highlight some of her writing about life in general and maybe some things about her work that aren't as well known.
In 2016, RBG wrote an op-ed in the New York Times called Ruth Bader Ginsburg's Advice for Living. I'll take an excerpt that spoke to me and I'll share it here.
I thought this was interesting advice. It's incredibly difficult to ignore what offends you. But displaying anger or frustration is more of a personal venting exercise when you need to work with the people around you.
RBG goes on to talk about what still needs to be done for equal rights. Namely, the pay gap between men and women and that most people in poverty in the United States and globally are women and children. That kind of disparity shouldn't exist. And if you're an optimist you won't get angry at some of the vile comments you see about those issues. Instead, it's better to persuade. And I'll draw out an example from one of her cases in front of the Wupreme Court that I think illustrates that kind of persuasion.
Let's talk about Equal Rights and Beer Bros.
So from RBG's op-ed, you can tell she was focused on her power to persuade. And during her career as a litigator in front of the Supreme Court she pretty carefully picked out cases of gender discrimination where men were treated unfairly by law. That was her strategy over the course of several cases to get a bunch of men to listen to her. One of those cases is Craig v. Boren where the notorious RBG took the reins of a broken case involving beer-loving bros of Oklahoma State University and laws that discriminated against their right to party. She filed an amicus from the ACLU in Craig v. Boren and was able to go second after that case and during her oral arguments, she presented the justices asked her about what to do with Craig v. Boren.
So, way back in the 1970s, even before the Beastie Boys existed, Ruth Bader Ginsberg fought for your right to party so that you didn't have to.
Men in Oklahoma were prohibited from buying beer until they were 21. Women on the other hand could purchase beer as young as 18. The law was drafted and presumed that men were a bunch of testosterone-driven idiots that couldn't handle alcohol at such a young age. The law presumed that women wouldn't drink and misbehave.
The result was that young men would have to pester their girlfriends to go buy beer. And one young bro from Oklahoma State University was so upset by this he decided to sue. He went back to his fraternity and asked for money to hire a lawyer. Go figure, frat bros spent most their money on beer so they weren't able to come up with a lot. But they found an attorney that would take the case on the cheap and they convinced a liquor store owner to be a party to the lawsuit to fix some standing issues.
The initial attorney, a pretty boisterous guy named Gilbert, made some jumbled arguments at the district court level. His legal style favored a lot of italics and exclamation points. He lost to an argument from the state that leaned heavily on traffic statistics as justification saying that young bros were more likely to pound a six-pack and smash their car into something.
Enter Ruth Bader Ginsburg! She was working at the ACLU at the time and decided that this particular case could use her help. Gilbert didn't let her completely take over. But he did encourage her to file an amicus brief. When the Supreme Court granted cert. and agreed to hear the case she wrote that she was "Delighted to see the Supreme Court is interested in beer drinkers." And she was at the Supreme Court arguing another related case. So when Gilbert got hammered on oral arguments she was there to pick up the pieces. When her case was called the justices immediately asked her what to do with Craig v. Boren and she went to work making the case that discrimination against men based on their sex is wrong.
So why would she do this? Why is RBG a champion of men's rights? That seems antithetical to advancing women's rights. But it's not. It's a shrewd choice to make 9 men on the Supreme Court think of discrimination based on sex from their own perspective and also helped knock down a cultural idea that laws that treated women as 1950s housewives are wrong. Every instance of discrimination against men cuts as a double edge sword against women. Using gender as a classification is highly questionable and should be closely reviewed. And she argued for a heightened standard of review for laws that discriminated in that fashion.
So that's RBG's adventure with the beer bros and I think a decent illustration of practicing her idea of how to persuade.
If you want to read more about this case check out Supreme Court History. There's also an excellent podcast episode about this case called More Perfect. If that's your jam you can check it out here.
Let's talk more about how Aaron Burr ruins everything
Ruth Bader Ginsburg's passing leaves a vacancy on the Supreme Court with some incredible shoes to fill. And a lot of the debate about filling Supreme Court seats centers around the filibuster.
In 2013 the then-Democratic Senate passed rules to end the filibuster for judicial appointments and Cabinet positions. In 2017 the Republican Senate ended the filibuster for Supreme Court picks. And I don't want to dive headlong into politics but the topic comes up whenever people are discussing what levers of power the Senate can pull and why with the respect to legislation and vacancies and among those levers is the filibuster. But what is the filibuster even and why does it exist?
It used to be that a Senator could stand up and grandstand until the clock ran out to avoid voting on a bill. Strom Thurmond infamously set a record of speaking for over 24 hours opposing the civil rights bill, for example. Later the filibuster evolved into a few people voting to filibuster and no standing and grandstanding was necessary.
A lot of people have some idea of the filibuster as this wonderful thing that happened in Mr. Smith Goes to Washington where a starry-eyed Senator uses it to fight corruption in Washington.
But the filibuster isn't something that was baked into the Constitution to protect minority party rights. In fact, the whole thing is an accident and anti-democratic.
The filibuster is not part of the U.S. Constitution. It was a complete mistake and the person that created it is Aaron Burr. When he was a member of the Senate and freshly indicted for murdering Alexander Hamilton, he made the case that the Senate rules were a mess and they should get rid of a rule that allowed the Senate to close debate by simple majority. The House kept their simple majority rule to close debate and the Senate didn't. The Senate also didn't seem to even realize that a filibuster was a thing to do until the mid-1800s.
In Federalist 58 Hamilton discusses the intent of the Constitution was mostly to serve as a vehicle for a simple majority to conduct the business of the state. There are a few exceptions in the Constitution that require supermajorities. (e.g., Impeachment) But those are exceptions to the rule. They're not the actual rule. Hamilton goes on to express the concern with such a system that would favor the minority writing, "In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority."
So the truth about the filibuster is that it's a thing born out of accident by the guy that also shot Hamilton. And when a party is in the minority they tend to make some strong cases for it and when a party is in the majority they tend to loathe it.
Should it exist at all though? No.