More on the remarkable Justice Ruth Bader Ginsburg

In these pages, I have written about Justice Ginsburg and the enormous respect I have for this tiny intellectual powerhouse. See Justice Ginsburg is not too old to continue to serve and anyone who says differently is a mean son-of-bitch and a misogynistJustice Ginsburg, and Justice Ginsburg shows us (again) that law is not politics.

Image credit: Simmie Knox, under commission of the United States Supreme Court

Image credit: Simmie Knox, under commission of the United States Supreme Court

With a tip of the hat to Howard Bashman and How Appealing, I call your attention to a long interview of Justice Ginsburg by Jeffrey Rosen, entitled Ruth Bader Ginsburg Is an American Hero She’s staying put—and has some choice words for young feminists. An interview, New Republic (September 28, 2014). I urge you to read it.

There is a lot of interesting information contained in the interview including Justice Ginsburg’s speculation that if Justice Sandra Day O’Connor had not retired Citizens United, Shelby County, and probably Hobby Lobby would have turned out differently. Her respect for Chief Justice Rehnquist also makes for a fascinating insight into the inner workings of the Court. Rosen has done us all a service with this probing interview.

RGK

7 responses

  1. I love RBG and don’t think she is out in the public enough, but that interview was cringeworthy. Focusing on the obvious:

    RBG: If the Court sticks to that position, there will be no overruling and it won’t matter whether it’s a Democratic president or a Republican president.

    The operative phrase is “If the Court sticks to that position,” and you would have to be almost incomprehensibly dense to not notice that the Justices only follow precedent when it takes them to their predetermined conclusion. Whatever happened to Conley v. Gibson? Why did it need to be changed? And whatever happened to deference to Congress? Shelby County was barely more than a formal declaration of a blanket judicial veto over every law Congress writes, and in the Seminole Tribe line of cases, they declared the right to veto the Constitution itself. In Hobby Lobby, Justice Scalia disclaimed his own own opinion in Employment Division v. Smith, licensing the religious, by virtue of their beliefs, “to become a law unto himself.” Expecting THIS Court to stick to settled positions is a little like expecting the Sun to rise in the West.

    Anyone who believes that Roe is sacrosanct is living in a hermetically-sealed bubble. Cornhole may cheer, but anyone who cares about the rule of law is justifiably mortified. If all it takes for a “law” to be overturned is “a change in the composition of the Court,” is it even “law” any more?

    RBG: I asked some people, particularly the academics who said I should have stepped down last year: “Who do you think the president could nominate and get through the current Senate that you would rather see on the Court than me?” No one has given me an answer to that question.

    I’ll answer it, as the answer is obvious. Justice O’Connor was replaced by a mediocre ideologue, and if she were to hang on until 2017 and Republicans picked the next candidate, you can rest assured that Roe would fall within two years. The question, therefore, is not one of seeing gains but rather, of cutting your losses. While it would be hard to get another Ruth Ginsburg through the process, the alternative is far, far worse. Hence, the request. Please pass it along to her.

    This is where the fundamental problem lies: If we were blessed with a judiciary that respected the constitutional limits on the judicial power, as opposed being shackled with our present coterie of self-appointed Platonic Guardians, judges and Justices would be chosen solely on merit, judicial candidates would not have to prostrate themselves before kingmakers to get appointments, and the judiciary as a whole would be of a much higher caliber than the unmitigated disaster we have now. Imagine debating the opinions of Justices Miner, Arnold (both were seriously considered), Bork (undeniably brilliant, but we know what happened to him), Kozinski, and Posner, instead of the vapid and often irrational decrees of Justices Alito, Sotomayor, and Thomas.

    If Justice Ginsburg could guarantee that she could continue to do her job competently through 2025, I would have no worries on that score. But according to Social Security mortality tables, an 81-year-old woman has a 9-year life expectancy. Assuming normal intellectual decay, the odds that she would be able to do her job 11 years from now are pretty long. And why does it matter? She tells us:

    RBG: But what really changed was the composition of the Court. Think of 2006, when Justice O’Connor left us, and the cases since then in which the Court divided five to four and I was one of the four, but would have been among the five if Justice O’Connor had remained. So I don’t think that my jurisprudence has changed, but the issues coming before the Court are getting a different reception.

    JR: What decisions would have come out differently if Justice O’Connor were still on the Court?

    RBG: She would have been with us in Citizens United, in Shelby County, probably in Hobby Lobby, too.

    If anyone labors under the conceit that at least in America, law is not politics, there is your reality check. Thank you again, Justice Ginsburg.

    The next issue that troubles me is her advocacy of minimalism:

    RBG: [Thurgood Marshall] was my model as a lawyer. You mentioned that I took a step-by-step, incremental approach, well, that’s what he did. He didn’t come to the Court on day one and say, “End apartheid in America.” He started with law schools and universities and until he had those building blocks, he didn’t ask the Court to end separate-but-equal.

    I have always had a philosophical problem with this. Either a law is constitutional or it is not, and when you decline to hear a case, you effectively decide it. And in willfully refusing to do the job you swore out an oath to do, you injure people — often, irrevocably. How can you look the man you destroyed in the eye afterwards?

    Being a judge requires courage. Being a politician, not so much. That was the whole point of a lifetime appointment. But if judges won’t show us their courage, it is time for term limits.

    RBG: I would repeat the advice that Judge Edward Tamm gave me when I was a new judge on the D.C. Circuit. It goes like this: Work hard on each opinion, but once the case is decided, don’t look back; go on to the next case and give it your all.

    It is hard for the district judge who hasn’t even read the briefs — and I am speaking to you, Judge Kopf — to “give it your all.” It is even harder for the appellate judge who doesn’t even read the opinion he or she delivers to do so. And it is impossible for the Supreme Court Justice who only gets a fifty-word precis to give it anything.

    From the opera: “The Justices are blind/how can they possibly spout this/the Constitution says absolutely nothing about this.”

    It is an opera. Verdi’s Aida. Both end badly (with the Constitution condemned to death), and in the halls of justice.

  2. Sorry, that was “Cornhead.” My sincerest apologies. Too much absinthe, clouding this old brain….

  3. The Absinthe-Minded Perfesser,

    You write: “If anyone labors under the conceit that at least in America, law is not politics, there is your reality check.” Ginsburg’s realpolitik does not necessarily mean that she believes that law is politics dressed up in fancy words. She could just as easily be understood as objecting to the legal reasoning likely to be espoused by those who would presently be able to clear the Senate confirmation process.

    Perhaps I am childish, but I continue to cling to the notion that having to justify a decision using legal reasoning, even if subconsciously motivated by partisan urges, distinguishes the Court from the political branches of government. Consider for example Chief Justice Rehnquist’s long standing hatred of the Miranda decision, and then consider his decision near the end of his life to uphold Miranda because it had become too deeply interwoven into the fabric of our “law” to overturn. That was not politics, but law.

    All the best.

    RGK

    PS Don’t worry about typos. I make them all the time. I once moved to disqualify a judge because he violated the cannons (big guns) of judicial ethics.

  4. The Perfesser is all over the map, if he wants to adopt the its constitutional or not approach difficult to see how deference to Congress fits in, current debate on margin of appreciation under ECHR interesting on this. If he is bothered by minimalism hard to see him as RBG fan, that is a view that goes back to her prejudicial writings on Roe. Blackmun’s trying to solve everything may in fact have made a large part of the problem with Roe. Use common law method was her preference. If he does not like platonic guardian, why the apparent enthusiasm for Roe, though Casey fixed a lot of theoretical problems it remains vulnerable to it being substantive due process of left substituted for substantive doe process of the right. And I am not sure who the marvel justices of the past were, maybe Sherman Minten? Most federal judges through history have been friends of Senators unless like Justice Washington they were friends of the POTUS or like McReynolds annoyed the POTUS by chewing tobacco or like Stone wanted to bring an antitrust case against a big donor. Maybe Perfesser should pay more attention to what L. Hand called the great legal doctrine of aw shit.

  5. The problem I have with your view on politics and law arises from the way you define politics, first you seem to limit it to partisan or party politics, not usually true of courts though with elected judges and campaign contribution cases in state courts can take on that character. Secondly you see politics as arbitrary and not driven by reason, but even the so called political branches are not that divorced from rationale debate. You have bought into the idea that democracy is nothing more than the settlement of emotional disagreement with ballots rather than guns. Finally as your instancing of Miranda demonstrates, you fail to notice that a developed systems of customs and restrains are part of politics, and part of the prudence of the political is knowing how to both change and preserve that tradition. The legal tradition constrains honest judges, not all and Marten Manton almost made it to SCOTUS, but its open texture leaves room for prudent judgment and space for disagreement.

  6. RL: “If he is bothered by minimalism hard to see him as RBG fan,”

    I don’t have to agree with Ginsburg to respect her. Judging from their writings, Kennedy and Sotomayor have minds of mush, and Kennedy’s opinions can be spit-up-coffee silly. Whereas O’Connor and Thomas look the part of affirmative-action hires (try reading his autobiography!), Scalia and Ginsburg have more gravitas.

    I disagree with minimalism. If a right is to be found in the Constitution, it is yours as a matter of right. That having been said, I can understand and appreciate the natural judicial reluctance to pre-empt political processes expressed so ardently in Scalia’s vitriolic Windsor dissent.

    RL: “If he does not like platonic guardian, why the apparent enthusiasm for Roe”

    To a true originalist, Roe is the right answer, though the opinion leaves a lot to be desired. The State has no particular interest in whether a given woman carries a given fetus to term, for at common law, the legal status of “personhood” was bestowed at birth. But let’s not have that debate in this forum (out of respect for the Judge, as it is his forum), as it is too far afield. All I will say about the Roe opinion is that it was not as well-crafted as it could have been; it would be constitutionally sound to conclude that the right to abort a fetus was an unenumerated right retained by virtue of the Tenth Amendment (the Griswold approach) and be done with it. But judges rightly fear “the law of unintended consequences,” and that most likely drove Blackmun to serve up that bowl of intellectual mush.

    RL: “And I am not sure who the marvel justices of the past were”

    Who were the great Justices of the past? Wilson practically wrote Article III, and his lectures on the Constitution are valuable reading even today. Both Marshalls, Story, Brandeis, Cardozo, Jackson, and Holmes should make it onto any Top Ten list, with Douglas and Black not too far behind. I would put Scalia in mine, and either Brennan or the elder Harlan. We could quibble at the edges, and others never had time to build a proper CV. None were perfect — history will not forgive Justice Holmes for Buck v. Bell — but we have all studied enough of their masterpieces to gain a genuine appreciation for their craft. And who can dismiss Posner, who Kagan described as the greatest legal theorist of our age?

    Judging from Judge Kopf’s war stories, it sounds like they used to do it right, and that he didn’t have to campaign too hard for his job. The first red flag was when Judge Miner was disqualified because he wouldn’t give Senators assurances that he would be a political hack.

    RL: “The Perfesser is all over the map, if he wants to adopt the its constitutional or not approach difficult to see how deference to Congress fits in, current debate on margin of appreciation under ECHR interesting on this.”

    As I’m having a hard time deciphering this sentence, I will try to respond to what I think you are saying. The Bill of Rights is an absolute limit on the power of our government to act; judges have an absolute duty under Article III to protect us from their encroachments. Shelby County was an outcome-driven encroachment upon Congress’s authority to enforce a provision of the Fourteenth Amendment, where the Roberts wing of the Court substituted its ad hoc factual findings for the record developed by Congress. As Justice Ginsburg wrote in her dissent, “In the Court’s view, the very success of § 5 of the Voting Rights Act demands its dormancy. Congress was of another mind. Recognizing that large progress has been made, Congress determined, based on a voluminous record, that the scourge of discrimination was not yet extirpated.” By what method of legal legerdemain does Roberts substitute his conclusion for that of Congress?

    If judges can change even the facts to suit their needs, there is no law. I am somewhat familiar with the ECHR doctrine, but I fail to perceive how it is significant, and fear that we would be drifting too far afield.

  7. If courts justified their decisions using sound legal reasoning more often, I would be less pessimistic. By way of example, as Justice Stevens points out, http://illinoislawreview.org/wp-content/ilr-content/articles/2003/3/Stevens.pdf, the Court effectively enacted a version of the Eleventh Amendment that was expressly rejected in favor of the current version. Hans v. Louisiana created a second Eleventh Amendment, and the right wing of the Court chose not to undo that obvious error, despite the fact that Scalia opined publicly that sovereign immunity was unknown to the Framers.

    When judges don’t give us a good reason for what they are doing, they are telling us that there IS no good reason for what they are doing. That is politics, not law.

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