“Is a hot dog a sandwich?” Despite thousands of written words on the jurisprudence of Justice Ruth Bader Ginsburg, it took just minutes and that single question for “Late Show” host Stephen Colbert on Wednesday night to reveal how the justice's mind works.

Colbert reached out to Ginsburg for an invitation to join her workout in the gym at the Watergate Apartments in Washington. (Ginsburg wasn't Colbert's first chat with a justice. Here are interview clips between Colbert and Justices Sonia Sotomayor and Stephen Breyer.)

Before his hilarious attempts to match the justice's exercises—”Are you juicing?” he asked at one point—Colbert peppered Ginsburg with a few questions.

“I was told not to ask her about any pending cases before the court—but I just had to press her on one of the most divisive issues facing our country,” Colbert said.

Here's the exchange that followed:

Colbert: Is a hot dog a sandwich?

RBG: You're asking me? Well, you tell me what a sandwich is and then I'll tell you if a hot dog is a sandwich.

Colbert: A sandwich is two pieces of bread with almost any type of filling in between, as long as it's not more bread.

RBG: You say two pieces of bread. Does that include a roll that's kind of open but still not completely?

Colbert: That's the crux. You've gotten [it] immediately. See this is why you're on the Supreme Court. That gets immediately to the question: does the roll need to be separated into two parts? Because a sub sandwich—a sub is not split and yet it is a sandwich.

RBG: Yes.

Colbert: So then a hot dog is a sandwich?

RBG: On your definition, yes, it is.

Colbert: Well played, lady justice.

Clearly, the question is not an easy one, and Ginsburg's answer reflected, if not that time-honored doctrine of constitutional avoidance, at least, judicial avoidance.

To assist Colbert in his search for an answer, several veteran Supreme Court advocates offered their best arguments in response to the justice's response.

Vinson & Elkins partner John Elwood

A hot dog must never be called a “sandwich,” lest someone think it is appropriate to put mayonnaise on one.

My more serious answer is that a hot dog is not a sandwich because people would not ordinarily use that word to describe a hot dog. Plus, there is the whole “a bun is not two slices of bread” thing.

Think back to when you were a kid and your mom ran out of buns and had to serve you a hot dog on bread, and she sliced the dog in half so it would fit between the slices and not roll out. That was, admittedly, a sandwich. But it also was an abomination against all that is good, and inferior in every way to a hot dog.

Goldstein & Russell partner Thomas Goldstein

I dissent.

Sidley Austin partner Carter Phillips (sitting in an airport, laughing at the video clip until he had tears in his eyes “and everyone around me thinks I'm nuts”):

Meat between bread clearly is a sandwich. Same rule and result for hamburgers.

Williams & Connolly partner Kannon Shanmugam

I could state my views on that, but I want to retain the ability to represent either side in the inevitable litigation.

Morrison & Foerster partner Joseph Palmore

To be frank, I do not relish the idea of disagreeing with my former boss on such a beefy question. So I won't. Under the definition as served up by Colbert, a hot dog is a sandwich.

 

 

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