Thread by @matthewstoller

1. I'm confused by RBG, as I don't really understand how she understood the point of law or what she meant by being committed to liberalism or equality. The best I can come up with is that she was a Clinton Democrat, a Watergate Baby style judge appointed Carter then Clinton.

2. Every observation starts with her remarkable achievements in the 1970s on behalf of gender equality, women getting the same terms as men for loans, credit cards, pension benefits, etc. Just unbelievable accomplishments. But what kind of *judge* was she? nytimes.com/2020/09/21/art…

3. This is the kind of random civil procedure case that doesn't get attention in profiles of RBG, Daimler vs Bauman. Read the Sotomayor dissent, it's a harsh critique of RBG's decision to prioritize the rights of multi-nationals over small businesses. supremecourt.gov/opinions/13pdf…

4. I once interviewed Patricia Wald, who served with RBG on the DC Circuit Court. Wald expressed a hint of bitterness about RBG, not because of they were rivals for the court but because of RBG's pandering to Robert Bork. It wasn't just personal friendship, but policy agreement.

5. It paid off when she was appointed to the Supreme Court. Here's a 1993 profile. "On many D.C. Circuit rulings, she joined Republican-appointed judges, rather than sign on with her Democratic-named colleagues."

washingtonpost.com/archive/politi…

6. RBG's confirmation was easy because she served big business. As Bill Kovacic put it, she was "as consistently conservative as any Bush/Reagan judge on the D.C. circuit in cases involving substantive antitrust standards, liability rules and remedies."
washingtonpost.com/archive/opinio…

7. Until relatively late in her term, RBG was a strong corporatist. The ultimate example was the unanimous decision to erode monopolization enforcement. This was the Trinko case, which was authored by her friend Antonin Scalia. law.cornell.edu/supct/html/02-…

8. But RBG did turn around. In Apple vs Pepper and Amex vs Ohio, as well as in Citizens United and a series of other cases, she began to tiptoe away from an embrace of corporate power. She was moving with the consensus, as she always had.

9. People got a hint of her politics when she insulted Colin Kaepernick, and then turned around and apologized. She thought the social consensus was one thing, and then realized it was something else. Very Watergate Baby style. cnn.com/2016/10/14/pol…

10. This is an area I don't know, but I'm told RBG was an IP extremist.

https://twitter.com/SeanFlaim/status/1308398775350820867

11. None of these decisions means that her extraordinary work on women's rights and equality didn't happen. And her forceful personality and important willingness to challenge the old boys club happened as well. They did. It's all a package. It's why I'm confused.

12. Clinton appointed two justices, Stephen Breyer and RBG. Both were confirmed easily. The only real opposition to either was Sen. Howard Metzenbaum, who thought that both were too friendly to big business. Breyer in fact was more doctrinaire on antitrust than many on the right.

13. RBG was an icon for Democrats wrestling with the collapse of the strategy of vesting power in the super-judiciary of the courts. Why didn't she retire?

"Anybody who thinks that if I step down, Obama could appoint someone like me, they’re misguided." "nytimes.com/2020/09/21/mag…

14. But what does "like me" mean? This is a very political statement. RBG says she holds deep political principles that are irreplaceable. What are they? Obviously she had an extraordinary commitment to the law, judging, and as an advocate, important questions of equity.

15. And it's especially powerful because she made the choice to preserve herself on the court, risking a Democratic seat. She did this for principled reasons. But what were her principles? They are there, I just can't figure out how to tease them out through her work.