On August 3, the Senate, by a vote of 96–3, confirmed Ruth Bader Ginsburg for the position of Associate Justice of the United States Supreme Court. Justice Ginsburg was sworn in as the Court’s 107th Justice by Chief Justice Rehnquist at ceremonies first at the Supreme Court and then at the White House on August 10, and once more on October 1 at the traditional Supreme Court ceremony attended by the Justices. On the first Monday in October, the opening day of the Supreme Court’s 1993 Term, the newest Justice took her seat on the bench alongside seven brethren and the Court’s first woman Justice, Sandra Day O’Connor.
Part Five
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The Justice on Judging and Justice
Introduction
THIS CHAPTER SAMPLES Justice Ginsburg’s speeches, lectures, and articles on the nature of the Court on which she serves, the job of the Justices, and the standards they do, or in her view should, observe, as they carry out their duty faithfully to apply the provisions of the United States Constitution and interpret the statutes passed by Congress. Striking to us is the way the Justice would give a speech, adapt it to other occasions, use its various points in different contexts, and, in one or more iterations, add footnotes and usher it into print. These varied iterations gave us the latitude to opt for shorter and more widely accessible treatments of the subjects that captured her attention over her years as a Justice. (A similar process was evident in the briefs lawyer Ginsburg wrote for the gender equality cases she brought to the Supreme Court in the 1970s, briefs that organically grew or shrank, changed in emphasis, or altered in their details over the course of years. Husband Marty Ginsburg characterized his spouse’s evolutionary process: “In the old days there was ‘The Brief,’ and now it’s ‘The Speech.’ ”) 1
Ruth Ginsburg is not one given to abstract constructs or dramatic flourishes. Her voice, in public and on paper, is modest and measured, yet her style is distinctive and her point is often captured in a memorable quotation from someone else or a notable and quotable pithy quip of her own. Her legal analyses dig deep into the “real world”—its history and quotidian details, and the way institutions, large and small, public and private, interact with each other and with democracy’s people. Always, she pays careful attention to the history and purpose, fairness and effectiveness, of the rules that shape and direct our justice system. Throughout her speeches and writings, she includes “sideglances” at the justice systems of sister democracies for the light they shine on our own and offers homage to the waypavers and the pathmarkers who have improved our world through law. At the heart of the concerns she addresses in the documents selected for this chapter is respect for the dignity and equality of all.
Workways
We begin with Justice Ginsburg’s primer on the “workways” of the Supreme Court, invaluable for understanding what she calls the “procedures at my workplace,” from how the Justices select the cases they review, to the nature and purpose of oral argument before the Court, to how the Justices reach their decisions and compose and release their written opinions to the public. For anyone from first-year law students to laypeople seeking to understand the Court, there could be no better guide.
(Truth be told, Justice Ginsburg has some rather unusual workways herself. Her ability to go without a normal night’s sleep is legendary; her propensity for working until around 4 a.m. and arriving at her chambers in the late morning—earlier when the Court is in session, sitting for oral argument—is known to every clerk and assistant. Her sleeplessness is part of a habit that started in high school and continued in college, where, after her roommates went to bed, she crept away to a quiet place to study into the wee hours. But we digress.)
The second article in this chapter addresses what Justice Ginsburg considers the essential predicate of the work of the Court: judicial independence. Her thesis, supported with historical and current examples: “Essential to the rule of law in any land is an independent judiciary, judges not under the thumb of other branches of Government, and therefore equipped to administer the law impartially. . . . [J]udicial independence, [however,] . . . can be shattered if the society law exists to serve does not take care to ensure its preservation.”
Third in this trio comes Justice Ginsburg’s tribute to Chief Justice Rehnquist on the occasion of his death in office from cancer in early September 2005. Her tribute gives a human face and personal touch to one who held the august title Chief Justice of the United States for nearly twenty years. Justice Ginsburg’s reflections both expand the reader’s understanding of any Chief Justice’s unique first-among-equals (“primus among the pares”) position in the Court’s workways and underscore this particular Chief’s skillful management of the Court and commitment to an independent judiciary. William Hubbs Rehnquist was, she said, “hands down the fairest and most efficient” boss she ever had.
Judging
Just months before President Clinton nominated her to the Supreme Court in the summer of 1993, Judge Ginsburg delivered a lecture-turned-law-review-article, “Speaking in a Judicial Voice,” on the appropriate style and substance of judging. The introductory paragraphs reveal her judicial philosophy: where she stands on the spectrum between “originalists”—adherents to what they perceive as the founders’ original understanding of the Constitution—and those who espouse “a living Constitution,” whose fundamental principles should be interpreted in light of changing circumstances the founders could not have imagined.
Invoking Madison and Hamilton, Ginsburg endorses the concept of a living Constitution. She illustrates her vision with a brief history of the American ideal of equality, a concept limited at the nation’s founding by a culture that kept early Americans “from fully perceiving or acting upon ideals of human equality and dignity,” but which, she notes, had “growth potential.” The story of the Constitution, she says, is “the extension . . . of constitutional rights and protections to once-excluded groups: to people who were once held in bondage, to men without property, to Native Americans, and to women.” (For more on this important subject, see the excerpt from the opera Scalia/Ginsburg, at p. 43, in which the protagonists, Justice Ginsburg [soprano] and Justice Antonin Scalia [tenor], the Court’s most outspoken originalist, debate the merits of their opposing theories of constitutional interpretation.)
After laying this groundwork, Ginsburg turns to the “style and substance” of judging. On style she endorses collegiality between judges and “taking the high ground” in their courtrooms and in their written opinions. Ginsburg advocates this approach not for manners’ sake (although, one senses, she believes good manners are generally a good thing), but because collegiality leads to better opinions, and enhances public respect for and confidence in the judiciary. (She includes illustrative “spicy” examples of intemperate language from actual opinions, and even names a few names, albeit in the footnotes.)
On substance, she says: “Measured motions seem to me right, in the main, for constitutional as well as common law adjudication. Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable,” thereby “plac[ing] stress on the [judicial] institution.” In the Madison Lecture, see p. 228, she offered Roe v. Wade as a prime example of the Supreme Court doing too much too soon. In Ginsburg’s view, the Court’s encompassing decision in Roe fueled enduring political controversy and failed to home in on a key dimension of the problem: that a woman’s ability to control her reproductive life is critical to equality in life and law. In her view, judges are not “platonic guardians” but play an interdependent part in democracy, participating in “a dialogue with other organizations of government, and with the people as well.” To Justice Ginsburg, history teaches that the Court should avoid either impeding, or leaping too far ahead of, the political process, instead engaging in “a temperate brand of decisionmaking” that proceeds incrementally, ordinarily deciding what is required by the case before it and leaving further development to later cases.
Comparative Sideglances and the Equality Ideal
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p; In “A Decent Respect to the Opinions of [Human]kind,” Justice Ginsburg, cognizant of congressional controversy in recent years over the Supreme Court’s citations to “foreign law”—the rulings of national, multinational, and international courts other than our own—makes the case that “looking beyond our borders” is “altogether fitting and proper for lawyers and judges in the United States.” From the earliest days of the Supreme Court to the twenty-first century, she shows, Justices have cited cases decided by the courts of other nations and international bodies. (She notes that even Justice Scalia, a vocal opponent of the practice, had indulged in it on occasion.)
Indeed, such “comparative sideglances” at the work of legal institutions beyond our shores have been her own practice as lawyer, law teacher, judge, and Justice, and a recurring feature of her articles and speeches. In “Brown v. Board in International Context,” Justice Ginsburg explores how that decision both reflected and advanced international human rights developments. The international response during the World War II era to the “rank racism” of the Nazis created a dilemma for the United States: how to maintain prestige and moral leadership in the world, given its own policies of racial segregation, including the segregation of African-American soldiers fighting and dying in the war against Hitler. The Supreme Court’s 1954 Brown decision, reported around the world, she reflects, “propelled an evolution yet unfinished toward respect, in law and in practice, for the human dignity of all the world’s people,” and inspired her own work on behalf of women’s rights.
In a brief and poignant follow-up, her “Remarks on Loving v. Virginia,” delivered a year after the death of Mildred Loving in 2008, describes “one of the most important cases the U.S. Supreme Court has ever decided.” In that 1967 case the Court declared Virginia’s miscegenation law unconstitutional. Chief Justice Earl Warren wrote for a unanimous court that “restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”
“Remarks on the Value of Diversity,” again informed by “comparative sideglances,” considers the law and practice of affirmative action, which Ginsburg characterizes as “endeavors to make the equality ideal more than aspirational.” Hired as the first woman in a tenured position at Columbia Law School, Justice Ginsburg claims to have been the beneficiary of the Nixon administration’s effort to encourage colleges and universities to hire women faculty. (Indeed, she labeled 1972 “the year of the woman” because of the number of women hired that year into all- or nearly all-male institutions.) Her lecture traces the legal status of affirmative action from its origins in the 1960s through its ups and downs in Supreme Court opinions such as Bakke (1978), and Gratz and Grutter (2003). (An affirmative action case decided after she gave the Diversity lecture, Fisher v. University of Texas, is included among her oral dissents at p. 296.) Justice Ginsburg points to the “attention-riveting line” from a 2007 opinion, which held unconstitutional Seattle’s plan to maintain integrated elementary and high schools by taking account of race in assigning children to particular schools: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Ginsburg joined the dissenters in the contrary view: “[There is a] legal and practical difference . . . between the use of race-conscious criteria . . . to keep the races apart, and the use of race-conscious criteria . . . to bring the races together.” As she told her audience, it is her belief that “[w]e will all profit from a more diverse, inclusive society, understanding, accommodating, even celebrating our difference, while pulling together for the common good.”
“I Dissent”
Not included in this chapter are any of Justice Ginsburg’s majority, concurring, or dissenting opinions (a representative sample of which would fill this entire volume and then some). For the opinions of the Court, readers can go to the Supreme Court website (supremecourt.gov), or to the official United States Reports, available in hard copy in every law library. In their stead, we present some of Ginsburg’s most notable legal opinions in their most abbreviated and least technical form—the bench announcement. Bench announcements are the oral summaries of majority opinions—and, much less frequently, dissenting opinions—delivered in the courtroom to waiting press and onlookers when the Court issues newly minted opinions. The bench announcement of her pathmarking majority opinion in United States v. Virginia is reproduced at p. 150. Several dissents she found important enough to announce from the bench are presented below.
But first, to prepare you, we bring you a lecture on dissents, delivered by Justice Ginsburg in Paris in 2013. In it, she examines the occasions for and virtues and vices of dissenting opinions, “a subject I have been obliged to think about more than occasionally in recent Terms.” The reasons for her heightened attention to dissents are not far to seek: Recent years have brought changes in the composition of the Court and her position within it. Since the appointment of Chief Justice Roberts and Justice Alito, in opinions where the nine Justices split five to four, the five, more often than not, were the Court’s conservative members, and the four in dissent, the more liberal Justices. With these appointments, the Court emerged from one of the longest periods in its history without a change in personnel (eleven years), during which Justices Ginsburg and Breyer were at the bottom of the Court’s hierarchy, Ginsburg at number 8 and Breyer at number 9. With the retirement of Justices Souter (2009) and Stevens (2010), and the arrival of Justices Sotomayor (2009) and Kagan (2010), Ginsburg became the most senior Justice in the liberal group (and the oldest member of the Court). In 5-to-4 cases with a conservative-liberal split, therefore, she became the one to decide who would write the dissenting opinion. In short, Justice Ginsburg had come into her own.
Characteristically, in this lecture on dissenting opinions, she envisions dissents as part of a conversation among the Justices. As the drafts circulate, the back-and-forth between the author of the majority opinion and the dissenter strengthens the Court’s final product. As Justice Ginsburg explains, dissents also speak to the public, to Congress, and to future Courts. She distinguishes between dissents in cases involving interpretation of federal statutes, which “put the ball back in Congress’ court,” and dissents on constitutional matters, which “appeal to the intelligence of a future day.” The selection of her most significant announcements of dissents from the bench, including several she discusses in her lecture on dissents, fill the pages immediately following the lecture.
Highlights of a Year at the Court
The chapter that begins with Justice Ginsburg’s description of the workways of the Supreme Court ends with her review of a single Term’s work. Every year, in late May or early June, the Justice addresses the annual Judicial Conference for the Second Circuit, presenting the highlights of the Term just ending. She then updates the review when the Term is completed. The completed “Highlights of the 2015–16 Term,” hot off the presses as this book went to print, are the Justice’s final words in this collection of her work.
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Workways of the Supreme CourtI
I will devote this lecture to procedures at my workplace. Why procedure? For some seventeen years that was my main field as a law school teacher. But much more important, one cannot get a firm grasp on the substance of our decisions without some grounding in the rules, practices, and traditions that frame our decisionmaking. I will begin with the large job the U.S. Constitution and federal laws assign to the Supreme Court of the United States. In the main, the Court serves as last-instance decisionmaker on questions arising under federal law.
The federal law on which we rule may be the Constitution itself. More often, however, we deal not with constitutional questions, but with ordinary laws governing a wide range of areas, for example, statutes governing bankruptcy, federal taxation, intellectual property, environmental protection, pensions, and provision of health care. And we regularly rule not only on laws passed by Congress or by state legislatures, but on the legitimacy of executive actio
ns, including actions of the U.S. president.
The U.S. Supreme Court today is not what jurists call an “error correction” instance. By that I mean the Court will not take up a case simply because a lower court reached an arguably—or even plainly—wrong decision. For correction of errors made in particular cases, we rely largely on the federal courts of appeals, and on the appellate courts (including Supreme Courts) in state judicial systems. (Most of the world’s nations have a judicial system. The United States has fifty-two systems. In addition to the federal court system, each state and the District of Columbia has its own two- or three-tiered court system.) For the most part, the U.S. Supreme Court will consider for review only cases presenting what we call deep splits—questions of federal law on which other courts (federal courts, state courts, or a mix of both) have strongly disagreed. About 70 percent of the cases we hear fall in that category.
My remarks divide into three parts. I will describe first the Court’s highly selective review granting process; next, I will speak of oral argument before the Court; and finally, I will take up the way decisions are reached, and how opinions are composed and released.
1. The Review Granting Process
We start each Term with a long conference one week before the Court Term begins the first Monday in October. At that late September opening conference, the Court disposes of petitions for review accumulated during the summer months—petitions filed from June until the start of September. The opening conference, as all our conferences, takes place behind closed doors and is strictly confidential. No person other than the nine Justices may enter the room when the Court is conferring—no secretary, law clerk, not even a message deliverer. The conferences are not recorded and no laptop is in sight. If there is a knock on the door, or the telephone rings, it is the chore of the junior Justice, now Justice Kagan, to answer. When the conference ends, the junior Justice stays behind to convey actions taken at conference to the administrative personnel whose job it is to inform the public of the Court’s dispositions.
My Own Words Page 19