Justice Scalia was a man of many talents, a jurist of captivating brilliance, high spirits, and quick wit, possessed of a rare talent for making even the most somber judge smile. The press wrote of his “energetic fervor,” “astringent intellect,” “peppery prose,” “acumen,” and “affability.”
It was my great good fortune to have known him as working colleague and dear friend. The Court is a paler place without him.
My rapid review of the Term just ended starts with a numerical snapshot. From June 2015 to May 2016, the Court received about 6,375 petitions for review, down from 6,500 in the previous Term. From the thousands of requests, we selected only 67 for full briefing and argument, not counting the one petition we dismissed as improvidently granted. To the 67, the same number we selected last Term, add 12 per curiam decisions—opinions rendered without full briefing or oral argument. That brings total opinions produced to 79.
Records set during the Term: According to a law professor who keeps tabs on these things, then blogs about them, Justice Breyer asked the longest question at oral argument. In United States v. Texas,2 a challenge to the president’s deferred-action immigration policy, Breyer’s inquiry ran 52 transcript lines. In total questions asked, however, Justice Breyer ranked only fourth, asking 381 questions. He stood behind Justice Alito, whose questions numbered 401, and the Chief Justice, who questioned counsel 417 times. Far out in front with 477 questions, Justice Sotomayor replaced Justice Scalia as the Justice who asked the most questions at oral argument.
Justice Thomas, after a ten-year silence, astonished all in attendance by asking nine questions, all in the same case, Voisine v. United States.3 The issue that sparked his interest: whether misdemeanor assault convictions for reckless conduct trigger the statutory ban on possessing firearms contained in 18 U.S.C. §922(g).
With all returns in, the Court completed the Term’s work on June 27. We divided 5–3 or 4–3 in 8 of the 67 argued cases4 and were unanimous, at least as to the bottom-line judgment, in 25 cases.5 And in 4, we affirmed judgments of the courts of appeals by an equally divided Court. When the Court is evenly divided, no opinions are released and the automatic affirmance of the court below has no precedential value; an even division, therefore, is essentially the same as a denial of review. Three of the 4–4 automatic affirmances were among the Term’s most closely watched cases. I will essay a capsule description of each.
First of the 4–4 splits announced, Friedrichs v. California Teachers Association:6 The petitioners in Friedrichs asked the Court to overrule Abood v. Detroit Board of Education7 and hold that requiring public-sector employees to pay anything to a union violates the First Amendment’s free speech guarantee. Abood, which held that all workers could be required to contribute to the cost of collective bargaining and union-operated grievance procedures, thus survives, at least until the Court numbers nine.
On June 23, four days before we finished, the Court reported equal divisions in Dollar General v. Mississippi Band of Choctaw Indians8 and United States v. Texas.9 The issue in Dollar General: whether tribal courts may adjudicate civil claims filed by members of a tribe against nonmembers who engage in wrongful conduct on Indian reservations.
In United States v. Texas, several states joined in a challenge to the legality of President Obama’s policy of deferring deportation of some four million unlawfully present aliens whose children are U.S. citizens or lawful permanent residents. Under long-standing government policy, aliens granted deferred action are eligible to receive certain benefits, prime among them permission to work legally in the United States. A divided Fifth Circuit panel affirmed a district court decision preliminarily enjoining implementation of that policy.
The case will now return to the trial court for a likely full airing on Texas’s request for a permanent injunction. Chances are the controversy will be back in our Court after round two in the lower courts.
We resolved another headline case on May 16, without an opinion on the merits. Zubik v. Burwell10 and the cases consolidated with it involved objections by religious nonprofits to providing contraceptive services coverage in their employees’ health plans, as required by the Affordable Care Act. The litigation was based primarily, not on the First Amendment’s free exercise of religion guarantee, but on a law passed by Congress, the Religious Freedom Restoration Act. Attempting to accommodate the nonprofits’ objections, the government had called upon third parties, mainly insurers, to provide contraceptive coverage in the religious employers’ stead. Even that accommodation, the nonprofits asserted, burdened the exercise of their religious beliefs because it made use of health plans offered by employers.
After hearing argument, the Court requested supplemental briefing to determine whether the parties might compose their differences. The additional briefs in hand, the Court issued a per curiam order remanding the cases so that the courts of appeals could consider what the new briefs conveyed. Justice Sotomayor filed a concurring opinion, which I joined, emphasizing that the Court’s order in no way tipped the scales in the nonprofits’ direction.
I turn now to some of the Term’s headline cases that yielded dispositive rulings. Evenwel v. Abbott11 concerned who counts under the one-person, one-vote principle derived from the Fourteenth Amendment’s Equal Protection Clause. In drawing state and local legislative districts, should the state count only eligible voters, as the plaintiffs, Texas voters, urged, or does everyone—the district’s total population—count? We held that jurisdictions may draw legislative districts to equalize total population.
The Framers of the Fourteenth Amendment, we emphasized, selected total population as the basis for congressional apportionment. They wrote: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State.” “It cannot be,” I wrote for the Court, “that the Fourteenth Amendment calls for the apportionment of congressional districts based on total population, but simultaneously prohibits States from apportioning their own legislative districts on that same basis.”12
High on the list of the Term’s leading decisions, Fisher v. University of Texas at Austin13 returned to the Court for a second look. The question: does the university’s affirmative action admissions policy meet the Court’s equal protection measurement? When the Fifth Circuit invalidated the university’s initial plan, the Texas Legislature adopted a Top Ten Percent Law, under which all Texas students who graduate in the top 10 percent of their high school classes gain admission. That plan accounts for up to 75 percent of the entering class. To complete the class, the university considers a number of factors, including a student’s race.
Last time around, in 2012, the Court sent the case back to the Fifth Circuit, determining that the Court of Appeals, which had upheld the university’s policy, had applied with insufficient rigor the close review the Court’s decisions required for all race-based classifications.14 I dissented on the ground that the university had followed assiduously the holistic, race-conscious model the Court had approved in Grutter v. Bollinger,15 the University of Michigan Law School affirmative action case. Like Michigan’s law school, the University of Texas used race as only one factor among many. The Top Ten Percent Law, which the majority regarded as race neutral, I suggested, could not fairly bear that description, for it was adopted with the state’s racially segregated neighborhoods and schools in full view.
On remand, the Fifth Circuit again upheld the university’s admissions policy. This time, in a 4–3 decision written by Justice Kennedy and announced June 23, the Court affirmed the judgment of the Court of Appeals. Justice Kennedy wrote for the majority: “Though a college must continually reassess its need for race-conscious review, here that assessment appears to have been done with care, and a reasonable determination was made that the University had not yet attained its goals.”16 “[P]ublic universities, like the States themselves,” the Court’s opinion stated, “can serve as laboratories for experimentation. The University o
f Texas at Austin has a special opportunity to learn and to teach.”17
Rivalling Fisher at the top of the most-watched slate was Whole Woman’s Health v. Hellerstedt.18 In that controversy, Texas abortion providers challenged the constitutionality of two severely restrictive abortion access regulations imposed by the state’s legislature: first, a requirement that abortion clinic physicians obtain admitting privileges at local hospitals; second, a mandate that clinics meet minimum standards required of ambulatory surgical centers. If the law had become fully operative, the District Court found, only 7 or 8 contraception and abortion clinics out of some 40 would remain.
The Fifth Circuit upheld the Texas restrictions in principal part. On the Term’s last opinion announcement day, June 27, we reversed the Court of Appeals judgment, 5–3, in an opinion by Justice Breyer. The Texas requirements did not genuinely protect women’s health, the Court observed. Instead, they burdened a woman’s access to an abortion for no tenable reason. In a concurring opinion, I emphasized that Texas trained its restrictions on abortion providers alone, and placed no similar restraints on medical procedures considerably more dangerous to patients, including tonsillectomies, colonoscopies, and childbirth.
The 2015–16 Term cases closely watched abroad included RJR Nabisco, Inc. v. European Community19 and Bank Markazi v. Peterson.20 In RJR Nabisco, the European Union invoked our Racketeer Influenced and Corrupt Organizations Act, commonly known as RICO, to sue a corporation, organized and headquartered in the United States, for allegedly orchestrating a complex, global money-laundering scheme. The EU asserted losses sustained by European financial institutions and member states’ lost opportunities to collect duties. The Court ordered dismissal of the EU’s suit. It held that, absent a domestic injury, private civil actions could not be maintained under RICO. No such limitation, the Court also held, applies to RICO civil action instituted by the United States. I agreed that the U.S. could sue, but dissented as to the Court’s exclusion of suits by private parties injured abroad. Joined by Justices Breyer and Kagan, I wrote that the domestic-injury requirement invoked by the Court to stop the EU’s suit was nowhere prescribed by RICO, but rather was the Court’s own invention.
Bank Markazi involved the constitutionality of a provision of the 2012 Iran Threat Reduction and Syria Human Rights Act. The provision identified a set of assets held at a New York bank for Bank Markazi, the Central Bank of Iran; it made those assets available to satisfy some sixteen district court judgments against Iran for its part in terrorist attacks abroad that took the lives of many U.S. citizens. The cases were consolidated for post-judgment execution in a proceeding the statute named by docket number. The question presented: Did the provision violate the separation of powers by directing a particular result in a pending case?
In an opinion I wrote, the Court upheld the statute, and thus freed the assets for distribution among the judgment creditors. Congress, we reaffirmed, can’t tell a court how a case should be decided under existing law, but ordinarily it can amend the law applicable to a pending case, even when the amendment will determine the outcome in that case. The decision drew a strong dissent from the Chief Justice, joined only by Justice Sotomayor, and an irate response from Iran, including a suit against the United States filed by Iran in the International Court of Justice.
Finally, I cannot resist reporting the Term’s most memorable slip by an attorney. On April 27, the last day for oral argument, an advocate responded to my question thus: “There are lots of other statutes that would prohibit precisely what you are suggesting, Justice O’Connor. . . .”21 I gently reminded counsel: “That hasn’t happened in quite some time.”22 The first woman on the Supreme Court retired a decade ago, yet confusion of the two of us lingers. Eight, as the Term’s 4–4 splits show, is not a good number for a multimember Court. When the 2016–17 Term ends, I anticipate reporting on decisions rendered by a full bench.
* * *
I. Translation: “for lack of a better alternative.”
II. A version of these remarks was delivered at the U.S. Court of Appeals for the Second Circuit Judicial Conference in Saratoga Springs, New York, on May 25, 2016. They have been updated and edited.
Conclusion
AT EIGHTY-THREE, Justice Ruth Bader Ginsburg is still going strong. She works out twice a week in the Supreme Court gym. She watches the evening news on TV while on the elliptical glider. Under the guidance of her longtime trainer, she lifts weights and does 20 push-ups—with a short stretch in the middle to catch her breath. This is down from the 30 push-ups she did a few years ago—but more than most of us do at half her age, if ever. She has twice conquered cancer, in 1999 and 2009, and never missed a day on the bench. On Sunday, June 27, 2010, she lost her life partner of fifty-six years—and carried on. The day after Martin Ginsburg’s death, the last day of the Supreme Court’s Term, she appeared with her fellow Justices and announced one of the Court’s decisions from the bench. Marty, she said, would have wanted it that way.
Since the retirement of Justice Stevens in June 2010, she has become the senior Justice among the Court’s four liberal members, significant because when the Court splits 5–4 on philosophically divisive issues of great public importance, she now decides who will write the dissenting opinion. Her own voice, in dissent, has never been stronger or more important to the reasoned dialogue in which the Court’s majority and dissenters engage as they shape the law of the land.
In recent years, to Justice Ginsburg’s bemusement, she has become something of a cultural rock star. There’s the opera, Scalia/Ginsburg (see Part One) and a play about a Supreme Court case (the actor who played Ginsburg, wearing a robe and lace collar, portrayed her to a tee). She has had a blog dedicated to following her life and career, her image has appeared on numerous and varied T-shirts, and she has been the subject of a bestselling book, admiringly titled The Notorious RBG. (The authors nicknamed her after her fellow Brooklynite, the rapper Notorious B.I.G.) Her daughter-in-law, Patrice Michaels, an opera singer and teacher, has composed a song cycle in her honor. There are RBG mugs, RBG portraits, RBG birthday cards, RBG tattoos, and most recently, not one but two RBG coloring books. The three- and four-year-olds of the Bee Hive Class at Temple Emanu-El in Dallas, Texas, named their class fish “Ruth Beta Ginsburg,” after the Justice. Researchers Sydney Brannoch and Gavin Svenson at the Cleveland Museum of Natural History went a step further, naming an entire species of praying mantis, Ilomantis ginsburgae, in honor of the Justice. Natalie Portman will portray her in an upcoming movie about a case she litigated, in partnership with her husband, in 1971.
On a more academic note, another book, Sisters in Law, a “dual biography,” recounts, to quote its subtitle, “How Sandra Day O’Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World.” A third book, The Legacy of Ruth Bader Ginsburg, features chapters by legal scholars and commentators assessing her contributions as lawyer, law professor, judge, and Justice. She has more than thirty honorary degrees, and counting. She has won numerous awards and honors, most recently including the American Bar Association Medal, which honors “a leader of the Bench or Bar” who has “truly ‘rendered conspicuous service to the cause of American Jurisprudence,’ ” and she has been counted among Time’s 100 Most Influential People, Forbes’ 100 Most Powerful Women, and Elle’s 2015 Women in Washington Power. The New York City Bar sponsors an annual Justice Ruth Bader Ginsburg Distinguished Lecture on Women and the Law, and the Association of American Law Schools’ Section on Women in Legal Education bestows a Ruth Bader Ginsburg Lifetime Achievement Award (of which Justice Ginsburg herself was the inaugural recipient).
To Ruth Ginsburg’s deep satisfaction, the two newest Justices on the Court are women, Sonia Sotomayor and Elena Kagan. When, more than two decades ago, President Bill Clinton announced his choice of Ginsburg for the Supreme Court, she responded that for her, the significance of her nomination was that “it contributes to the end of the days when women, at least half the tale
nt pool in our society, appear in high places only as one-at-a-time performers.” (See Part Four.) When Justice Sandra Day O’Connor, until Ginsburg’s confirmation a “one-at-a-time performer,” retired in 2006, Ruth Ginsburg was left as the only woman on the Court. “Neither of us ever thought this would happen again,” she said. “The word I would use to describe my position on the bench,” she told a reporter a year after O’Connor’s departure, “is lonely.” 1 She is lonely no more: “Now Kagan is on my left, and Sotomayor is on my right. So we look like we’re really part of the Court and we’re here to stay.” 2 In recent years, when people ask her when she thinks there will be enough women on the Court, she answers, with a twinkle in her eye, “My answer is, when there are nine.” 3
Does Justice Ginsburg plan to retire? A few years ago, she said she wanted to match the record of Justice Louis Brandeis, who retired after twenty-three years on the bench. By April 2016, she had matched the Brandeis record. On another occasion, she said she would not leave the Court until the Smithsonian Museum of American Art returned the Josef Albers painting it had borrowed from her to take on tour. That painting has been restored to its place facing the desk in her chambers. When Justice Stevens retired at ninety after thirty-five years on the Court in 2010, making Ruth Ginsburg the Court’s oldest member and senior liberal, she said he was her new “model.” The test, she has said, “has to be, ‘am I equipped to do the job?’ ” She will stay, she says, “as long as I can do the job full steam.” 4
Justice Ginsburg works out on elliptical during a training session at the Supreme Court, sporting her “Super Diva” sweatshirt. August 30, 2007.
Justice Ginsburg in her Chambers with her October Term 2015 law clerks, Chambers staff and Natalie Portman, February 29, 2016.
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