Discussion at Supreme Court conferences is often spirited, but seldom protracted. “It will come out in the writing,” the Chief Justice is likely to comment, when we have all had our say. And so it does. The conference vote is always tentative. An opinion writer may find that the conference position, in whole or in part, “won’t write,” so the writer ends up on a different track.
Or, an opinion circulated as a dissent may attract the majority’s approval and become the opinion of the Court. (I vividly recall one case several Terms ago in which a dissent for two ended up a majority opinion for six.) The papers of Justices Harry Blackmun and Thurgood Marshall, housed at the Library of Congress and open to the public, show that, in a case I argued before the Court in the mid-1970s, the initial vote at conference was 5–4 against my position. Ultimately, however, after several post-conference exchanges among the Justices, and a few switches, the position I advocated prevailed.
Turning specifically to opinion writing, my colleagues and I have high regard for the label “opinion of the Court.” That regard is demonstrated in what I call “Dear Ruth” letters responsive to a circulating opinion. (In all intra-Court correspondence, we use only first names.) “Dear Ruth” letters not uncommonly read: “Please consider adding, deleting, dropping, revising to say [thus and so],” or, more hopefully, “I will join your opinion if you will take out, put in, alter or adjust as follows.” I am comforted, at such times, by a comment made by Chief Justice Hughes, who presided from 1930 until 1941. Hughes said that during the many years he served on the Court he always tried to write his opinions logically and clearly, but if another Justice whose vote was necessary to make a majority insisted that particular language be put in, in it went, and let the law schools figure out what it meant!
In truth, much more often than not, my colleagues’ comments help me to improve an opinion. And there is nothing better than a good dissent to force one to sharpen her presentation for the Court. (Most appellate courts in civil law–style systems, in contrast, allow no published dissents or separate concurrences; they produce only a nameless, uniform-in-style judgment of the Court.)
I prefer and continue to aim for opinions that both get it right, and keep it tight, without undue digressions or decorations or distracting denunciations of colleagues who hold different views. (But I doubt I will ever match Justice Breyer’s discipline and restraint in squelching all temptation to use footnotes.) And it is worth repeating that the Court really does prize collegiality. Yes, in between 20 and 25 percent of the argued cases we have divided 5–4 in recent Terms, but, as I said earlier, our unanimity rate is notable—running in the 40 percent range.
Most impressive, I think, despite sharp differences on certain issues—for example, cases on campaign finance, employment discrimination, affirmative action, access to abortion and contraceptives, prisoners held at Guantanamo Bay, the meaning of the Second Amendment—we remain good friends, people who respect each other, and genuinely enjoy each other’s company. Our mutual respect is only momentarily touched, in most instances, by our sometimes strong disagreement on what the law is. The institution we serve is ever so much more important than the particular individuals who compose the Court’s bench at any given time. And our job—the job of judging in a U.S. federal court generally—is, in my view, the best work a U.S. lawyer could wish for. We serve no client, our commission is to do what is right—what the law requires and what is just. The guarantees of judicial independence the Founding Fathers were wise enough to place in the U.S. Constitution (including life tenure and no reduction in our salary while we hold office) arm us to do just that. (In many constitutional courts in other lands, a different safeguard of independence is installed: a long, nonrenewable term—9, 12, or 15 years, for example.)
Contrast the security federal judges enjoy with the relative insecurity of state court judges who must stand for periodic elections. In 39 of the 50 states composing the United States, judges, at least at some level in the hierarchy, face elections. One can understand the origins of elections for judicial office in the United States; the practice traces back to the distrust of the king’s judges in days when the thirteen original states were British colonies. But, at least in my judgment, elections are a dangerous way to choose or retain judges. Lady Brenda Hale, the first and still the only woman on the Supreme Court of the United Kingdom, said in a 2003 speech:
One of the most important tasks of the judiciary is to protect the individual from the power of the state. This includes protecting minorities, often unpopular minorities, from the wrath of the majority. . . . [I]f [the judge] were to have to submit [herself] periodically to election, [she] would find this harder to do.
I concur in that judgment.
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I. Justice Ginsburg has delivered numerous versions of these remarks to various audiences over the years, including to students in the Wake Forest University School of Law Summer Program in Venice, Italy, in July 2016. We have edited the remarks for length and to ensure clarity outside the context in which they were originally delivered.
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Judicial IndependenceI
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. As experience in the United States and elsewhere confirms, however, judicial independence is vulnerable to assault; it can be shattered if the society law exists to serve does not take care to ensure its preservation.
My remarks concentrate on judicial independence in the system I know best, the third branch of the U.S. government—the federal courts—and on efforts by the political branches to curtail that independence.
I.
Under the U.S. Constitution, federal judges hold their offices essentially for life, with no compulsory retirement age, and their salaries may not be diminished by Congress.1 Through these protections, the founders of the United States sought to advance the judiciary’s independence from Congress and the president, and thus to safeguard judges’ ability to decide cases impartially. Yet I doubt that constitutional insulation would have protected the federal bench if we did not have a culture that frowns on attempts to make the courts over to fit the president’s or the Congress’ image.
A well-known illustration of that culture. Some seventy years ago, President Franklin Delano Roosevelt announced a proposal to pack the U.S. Supreme Court. The Court of that day had resisted President Roosevelt’s New Deal program, holding unconstitutional sixteen pieces of federal social and economic legislation in a thirteen-month span.
Frustrated by his inability to replace the “nine old men” then seated on the Court, President Roosevelt sent to the Senate a bill to overcome the Court’s recalcitrance. He proposed adding one Justice for each member of the Court who had served ten years or more, and did not retire within six months after reaching age seventy.2 FDR’s proposal would have immediately swelled the Court’s size from 9 to 15 members. (If the 1937 plan were to be applied to the current Court, we would today have a 13-member bench.) Two developments, manifest by the end of 1937, contributed to the defeat of Roosevelt’s plan: a groundswell of public opposition to the president’s endeavor to capture the Court, and a growing understanding among the Justices that it was appropriate to defer to legislative judgments on matters of social and economic policy. FDR’s idea has never been renewed. Those who care about the health and welfare of our system appreciate that packing the Court to suit the mood of the political branches (Congress and the president) would severely erode the status of the judiciary as a co-equal branch of government.
II.
I turn now to some recent threats to the security of U.S. judges who decide cases without regard to what the “home crowd” wants.
A headline-producing case in point. Early in 2005, federal courts sitting in Florida confronted a cause célèbre. On order of the Florida state courts, a hospital had removed the feeding tube from Terri Schiavo, a severely brain-dam
aged woman whose situation sparked a huge controversy over the right to refuse life support. Congress entered the fray by passing a most unusual statute giving the federal courts jurisdiction to hear the plea of Schiavo’s parents, but not altering the governing substantive law.3 The federal courts read the statute as it was written, and refused to override the Florida courts by ordering restoration of the feeding tube. This was not the outcome wanted by a goodly number of the members of Congress. In angry reaction, the then–House majority leader accused federal judges of “thumb[ing] their nose[s] at Congress and the president.”4 He warned: “[T]he time will come for the men responsible for this to answer for their behavior.”5 “Congress,” he said, “for many years has shirked its responsibility to hold the judiciary accountable. No longer.”6
Similarly unsettling, in the same year, 2005, two episodes of violence against judges shocked the nation. A state court judge was murdered while on the bench in Atlanta, and a federal judge’s mother and husband were murdered at the judge’s home in Chicago.7 Shortly thereafter, a prominent senator gave a widely reported speech on the Senate floor. After inveighing against “activist jurists,” he suggested there may be “a cause-and-effect connection” between judicial activism and the “recent episodes of courthouse violence in this country.”8
The blasts from Congress were not merely verbal. In May 2005, the House Judiciary Committee considered creating an “office of inspector general for the federal judiciary.”9 The office would investigate allegations of judicial misconduct and report them to Congress. The committee’s chairman said, in announcing the proposal, that judges must “be punished in some capacity for behavior that does not rise to the level of impeachable conduct.”10 If the then-chairman’s subsequent action indicated the role he envisioned for the proposed inspector general, judges had good cause for concern. In June 2005, that chairman’s office dispatched a letter to a U.S. Court of Appeals, complaining that the court had ordered an unlawfully low sentence for a narcotics-case defendant. The letter called for a “prompt response . . . to rectify” the decision,11 even though the government sought no further review of the sentence. Never mind that federal law entrusted the decision whether to seek a higher sentence to top-ranking Justice Department officers, not to judges, and certainly not to Congress.
Another troubling congressional initiative: proposals to prohibit federal courts from relying on foreign law.12 A misunderstanding appears to underlie the opposition to foreign law citations. As Justice Stephen Breyer explained in a recent interview, citations to foreign laws and decisions should not be controversial.13 “References to cases elsewhere are never binding,” Justice Breyer emphasized. We interpret and apply only our own Constitution, our own laws. But it can add to our store of knowledge, Justice Breyer explained, “to look at how other people [with a commitment to democracy similar to our own] solve similar problems.” Justice Breyer compared references to the decisions of foreign and international tribunals to references to a treatise or to a professor’s work.
Lest I appear to be spreading too much gloom, I should emphasize the vocal defenders of the judiciary, intelligent voices that do not divide along party lines. The New York Times, a paper some regard as “liberal,” recently editorialized: “The courts will not always be popular; they will not always be right. But if Congress succeeds in curtailing the judiciary’s ability to act as a check on the other two branches, the nation will be far less free.”14 Former solicitor general Ted Olson, generally perceived as conservative, published a similar view: “Americans understand,” and I hope he is right, “that no system is perfect and no judge immune from error, but also that our society would crumble if we did not respect the judicial process and the judges who make it work.”15
History suggests that Congress is unlikely to employ the nuclear weapon—impeachment—against judges who decide cases in a way the “home crowd” does not want. In the over 220 years since ratification of the Constitution, the House of Representatives has impeached only thirteen federal judges; in only seven instances did impeachment result in a Senate conviction,16 and those judges were removed not for wrongly interpreting the law, but for unquestionably illegal behavior, such as extortion, perjury, and waging war against the United States.17
Although politically driven impeachment of federal judges is a remote prospect, yet another threat to judicial independence cannot be discounted so easily. In President Clinton’s second term, it bears reminding, political hazing of federal judicial nominees was unrelenting. The confirmation process in those years often strayed from examining the qualifications of each nominee into an endeavor to uncover some hidden “liberal” agenda the nominee supposedly harbored. For many Democrats, President Bush’s successive terms have been payback time, an opportunity to hold up or reject Bush nominees to the federal judiciary on ideological grounds.
Injecting politics prominently into the nomination or the confirmation process means long delays in filling judicial vacancies. In the face of mounting caseloads, such delays threaten to erode the quality of justice the U.S. federal judiciary can provide. Vacancies in large numbers inevitably sap the energy and depress the spirits of the judges left to cope with heavy dockets shorthanded.
I should mention, too, the host of jurisdiction-curtailing measures placed in the congressional hopper in recent years. One bill would have severely limited the scope of federal habeas corpus review.18 Another would have removed federal courts’ authority to decide any case concerning the Ten Commandments, the Pledge of Allegiance, and the national motto, “In God We Trust.”19 Yet another would have taken away from the federal courts authority to adjudicate free exercise or establishment of religion claims, privacy claims (including those raising “any issue of sexual practices, orientation, or reproduction”), and any claim to equal protection of the laws “based upon the right to marry without regard to sex or sexual orientation.”20
All these proposals, and other like-minded bills, failed, as students of history could have predicted. Jurisdiction-stripping reactions to disliked decisions have been proposed perennially. In the 1950s, desegregation and domestic security cases were on some legislators’ strip lists; in the 1960s, federal court review of certain criminal justice matters; in the 1970s, busing to achieve racial integration in schools; in the 1980s, abortion and school prayer. None of these efforts succeeded, and the more recent endeavors to curb federal court jurisdiction have fared no better. A simple truth has helped to spare the federal judiciary from onslaughts of this character: It is easier to block a bill than to get it enacted.
I note, finally, a Congress-Court confrontation proposed in 2004 and revived the next year. The more recent try, titled the “Congressional Accountability for Judicial Activism Act of 2005,” would allow U.S. Supreme Court judgments declaring a federal law unconstitutional to be overturned by a two-thirds vote of the House and Senate.21 (Canada’s Charter of Rights and Freedoms22 permits legislative override of a Supreme Court decision holding a statute incompatible with a Charter-protected right. But Canada’s Parliament has yet to avail itself of that prerogative.)
A Constitution providing for legislative override of Court decisions resolving constitutional questions, author and journalist Anthony Lewis observed, “would be more democratic in the sense that it would remove constraints on majority rule.”23 But, Lewis rightly reminds us, in the words of Aharon Barak, former president of the Supreme Court of Israel: “ ‘Democracy is not only majority rule. Democracy is also the rule of basic values . . . values upon which the whole democratic structure is built, and which even the majority cannot touch.’ ” 24 The founders of the United States did not envision a rule of law based on pure majoritarianism,25 and I see no cause to open the door to a legislative override now.
A note on U.S. state courts. Judges in most states, at least at some levels, are chosen in periodic elections. A question I am often asked when traveling abroad: “Isn’t an elected judiciary totally at odds with judicial independence?” How ca
n an elected judge resist doing “what the home crowd wants”? I have no fully satisfactory answers to those questions.
To return to my starting line, when former Chief Justice Rehnquist described an independent judiciary as the United States’ hallmark and pride, he was repeating a theme sounded since we became a nation.
It is fitting, I think, to close with the words of two U.S. legal scholars from different ends of the political spectrum—one, Bruce Fein, known for his “conservative perspective,” the other, Burt Neuborne, known for his “progressive vision.” Though often on opposite sides in debate, they joined together to speak with one voice on the value of judicial independence. Their coauthored essay concludes:
Judicial independence in the United States strengthens ordered liberty, domestic tranquility, the rule of law, and democratic ideals. . . . It would be folly to squander this priceless constitutional gift to placate the clamors of benighted political partisans.26
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I. Justice Ginsburg has delivered numerous versions of these remarks to various audiences over the years, including to students in the Wake Forest Law School Summer Program in Venice, Italy, in July 2008. We have edited the remarks for length and to ensure clarity outside the context in which they were originally delivered.
3
Tribute to Chief Justice RehnquistI
When my former law clerk, Amanda Tyler, asked me to speak at this program honoring William Hubbs Rehnquist, I looked forward to the Chief’s attendance as we celebrated his thirty-three years on the Court, the last nineteen as Chief Justice. Though he fought a dread disease bravely, he was unable to complete the twenty years all of his colleagues hoped he would have at the Court’s helm. On September 4, the morning after his death, each of us released statements through the Court’s Public Information Office. Mine conveyed that, of all the bosses I have had as a lawyer, law teacher, and judge, Chief Justice Rehnquist was hands down the fairest and most efficient. Presiding over six prime dons and two prima donnas, he kept us all in line and on time. Justice O’Connor, recalling the Chief’s mastery of the art of short statement, said: “He led the Court with firm principles but with a light touch.” We held him in highest esteem and deep affection, and will try to keep the Court operating with the harmony he successfully endeavored to achieve.
My Own Words Page 21