My Own Words

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by Ruth Bader Ginsburg


  2. See ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 40 (Amy Gutmann ed., 1997) (“It certainly cannot be said that a constitution naturally suggests changeability; to the contrary, its whole purpose is to prevent change—to embed certain rights in such a manner that future generations cannot readily take them away.” (emphasis added)); see also Lee v. Weisman, 505 U.S. 577, 632 (1992) (Scalia, J., dissenting) (“Today’s opinion shows more forcefully than volumes of argumentation why our Nation’s protection, that fortress which is our Constitution, cannot possibly rest upon the changeable philosophical predilections of the Justices of this Court, but must have deep foundations in the historic practices of our people.” (emphasis added)). Changeability is the subject of one particularly well-known operatic aria. See GIUSEPPE VERDI & FRANCESCO MARIA PIAVE, La donna è mobile [Woman is changeable], in RIGOLETTO act 1, sc. 11 (1851), available at http://perma.cc/3KX-ZCBG.

  3. Cf. GEORGES BIZET, HENRI MEILHAC & LUDOVIC HALÉVY, Habañera (L’amour est un oiseau rebelle) [Habañera (Love is a rebellious bird)], in CARMEN act 1, sc. 5 (1875), available at http://perma.cc/6LTM-YJAH (“L’amour est enfant de Bohême, / il n’a jamais, jamais connu de loi” [“Love is a gypsy’s child, / It has never, ever known the law”]).

  4. See, e.g., GEORGE FRIDERIC HÄNDEL & NICOLA FRANCESCO HAYM, Empio, dirò, più sei [I say, you are a villain], in GIULIO CESARE IN EGITTO [JULIUS CAESAR IN EGYPT] act 1, sc. 3 (1724) (HWV 17), available at http://perma.cc/CWU7-4GGU.

  5. See Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 980 (1992) (Scalia, J., concurring) (stating that “the Constitution says absolutely nothing about” whether the power of a woman to abort her unborn child is a liberty protected by the Constitution).

  6. See United States v. Virginia, 518 U.S. 515, 567 (1996) (Scalia, J., dissenting) (“Today [this Court] enshrines the notion that no substantial educational value is to be served by an all-men’s military academy . . . .” (emphasis added)); id. at 597 (“The enemies of single-sex education have won; by persuading only seven Justices (five would have been enough) that their view of the world is enshrined in the Constitution, they have effectively imposed that view on all 50 States.” (emphasis added)). Contra McCreary County v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 896-97 (2005) (Scalia, J., dissenting) (“The Establishment Clause, upon which Justice Stevens would rely, was enshrined in the Constitution’s text, and these official actions show what it meant. . . . What is more probative of the meaning of the Establishment Clause than the actions of the very Congress that proposed it, and of the first President charged with observing it?” (emphasis in original)); Dist. of Columbia v. Heller, 554 U.S. 570, 584-85 (2008) (“Nine state constitutional provisions written in the 18th century or the first two decades of the 19th . . . enshrined a right of citizens to ‘bear arms in defense of themselves and the state’ or ‘bear arms in defense of himself and the state.’ ” (emphasis added) (citations omitted)); id. at 634-36 (“Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. . . . [T]he enshrinement of constitutional rights necessarily takes certain policy choices off the table.” (emphasis added)).

  7. See, e.g., Ushma Patel, Scalia Favors “Enduring,” Not Living, Constitution, PRINCETON UNIV. (Dec. 11, 2012, 1:00 PM), http://perma.cc/M7R2-3G9H (“ ‘I have classes of little kids who come to the court, and they recite very proudly what they’ve been taught, ‘The Constitution is a living document.’ It isn’t a living document! It’s dead. Dead, dead, dead!’ Scalia said, drawing laughs from the crowd. ‘No, I don’t say that. . . . I call it the enduring Constitution. That’s what I tell them.’ ”).

  8. Cf. The First Nowell, in CHRISTMAS CAROLS NEW & OLD (Henry Ramsden Bramley & John Stainer eds., ca. 1878) (“The First Nowell the Angel did say, / Was to certain poor shepherds in fields as they lay . . .”).

  9. See McDonald v. City of Chicago, 561 U.S. 742, 805 (2010) (Scalia, J., concurring) (“Justice Stevens abhors a system in which ‘majorities or powerful interest groups always get their way’ . . . but replaces it with a system in which unelected and life-tenured judges always get their way.” (citation omitted)); Webster v. Reproductive Health Servs., 492 U.S. 490, 535 (1989) (Scalia, J., concurring) (“We can now look forward to at least another Term with carts full of mail from the public, and streets full of demonstrators, urging us—their unelected and life-tenured judges who have been awarded those extraordinary, undemocratic characteristics precisely in order that we might follow the law despite the popular will—to follow the popular will.”).

  10. Cf. HÄNDEL & HAYM, Svegliatevi nel core [Awaken in my heart], in GIULIO CESARE IN EGITTO, supra note 4, at act 1, sc. 5 (“L’ombra del genitore / accorre a mia difesa / e dice: a te rigor, / Figlio, si aspetta.” [“The specter of [my] father / Rushes to my defense / And says: from you, severity, / [My] son, is expected.”]).

  11. Cf. FRANCIS SCOTT KEY & JOHN STAFFORD SMITH, The Star-Spangled Banner (1814) (“O! say can you see by the dawn’s early light, / What so proudly we hailed at the twilight’s last gleaming”).

  12. Cf. GEORGE FRIDERIC HÄNDEL, Ombra mai fu, in SERSE [XERXES] act 1, sc. 1 (1738) (HWV 40), available at http://perma.cc/6XRJ-AUK5 (Händel’s “Largo”) (“Ombra mai fu / Di vegetabile, / Cara ed amabile / Soave più.” [“Never was a shade / Of any plant / Dearer and lovelier, / [Or] sweeter.”]).

  13. Cf. The First Nowell, supra note 8 (“Nowell, Nowell, Nowell, Nowell, / Born is the King of Israel.”).

  14. See 60 Minutes: Justice Scalia on the Record, Both Online and Off (CBS television broadcast Apr. 27, 2008) (transcript available at http://perma.cc/A64C-QNBB) (“ ‘When I first came on the court I thought I would for sure get off as soon as I could which would have been when I turned 65. Because you know, justices retire at full salary. So there’s no reason not to leave and go off and do something else. So you know, essentially I’ve been working for free, which probably means I’m too stupid to be on the Supreme Court,’ Scalia says, laughing. ‘You should get somebody with more sense. But I cannot—what happened is, simply I cannot think of what I would do for an encore. I can’t think of any other job that I would find as interesting and as satisfying.’ ”).

  15. See id. (“ ‘I mean after a while, you know, I’m saying the same things in today’s dissent that I said in a dissent 20 years ago,’ Scalia explains.”).

  16. Cf. WOLFGANG AMADEUS MOZART & EMANUEL SCHIKANEDER, DIE ZAUBERFLÖTE [THE MAGIC FLUTE] act 2, sc. 8 (1791) (K. 620), available at http://perma.cc/444R-UDUT (“Die Königin der Nacht kommt unter Donner aus der mittlern Versenkung und so, dass sie gerade vor Pamina zu stehen kommt.” [“The Queen of the Night emerges amid thunder from the central trapdoor so that she stands just in front of Pamina.”]); RICHARD WAGNER, DAS RHEINGOLD [THE RHINE GOLD] sc. 4 (1869), available at http://perma.cc/U6VV-PLAL (“[W]ird plötzlich Erda sichtbar, die . . . aus der Tiefe aufsteigt; sie ist von edler Gestalt . . .” [“Erda is suddenly visible, rising . . . from the depths; she is of noble figure . . . .”]).

  17. See Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2623-24 (2012) (Ginsburg, J., concurring) (“Underlying the Chief Justice’s view that the Commerce Clause must be confined to the regulation of active participants in a commercial market is a fear that the commerce power would otherwise know no limits. . . . As an example of the type of regulation he fears, The Chief Justice cites a Government mandate to purchase green vegetables. . . . One could call this concern ‘the broccoli horrible.’ ”).

  18. See United States v. Windsor, 133 S. Ct. 2675, 2704 (2013) (Scalia, J., dissenting) (“Unimaginable evil this is not.”).

  19. Cf. McCulloch v. Maryland, 17 U.S. (4 Wheaton) 316, 407 (1819) (“[W]e must never forget, that it is a constitution we are expounding.”); Antonin Scalia, Remarks at the Woodrow Wilson International Center for Scholars (Mar. 14, 2005) (transcript available
for download at http://perma.cc/WAB5-EGV3) (“Although it is a minority view now, the reality is that, not very long ago, originalism was orthodoxy. . . . [C]onsider the opinions of John Marshall in the Federal Bank case, where he says . . . we must always remember it is a constitution we are expounding. And since it’s a constitution, he says, you have to give its provisions expansive meaning so that they will accommodate events that you do not know of which will happen in the future. Well, if it is a constitution that changes, you wouldn’t have to give it an expansive meaning. You can give it whatever meaning you want and, when future necessity arises, you simply change the meaning. But anyway, that is no longer the orthodoxy.”).

  20. See United States v. Virginia, 518 U.S. 515, 567 (1996) (Scalia, J., dissenting) (“The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court’s criticism of our ancestors, let me say a word in their praise: They left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the countermajoritarian preferences of the society’s law-trained elite) into our Basic Law.”). See generally David F. Forte, The Illiberal Court, 48 NAT’L REV., July 29, 1996, at 40; cf. also [Jennifer Senior, In Conversation: Antonin Scalia, N.Y. MAG., Oct. 6, 2013, available at http://perma.cc/Q9ZW-ZFYN] (“[W]e get newspapers in the morning. . . . We used to get the Washington Post, but it just . . . went too far for me. I couldn’t handle it anymore. . . . It was the treatment of almost any conservative issue. It was slanted and often nasty. . . . I think they lost subscriptions partly because they became so shrilly, shrilly liberal.”).

  21. Cf. GIUSEPPE VERDI & FRANCESCO MARIA PIAVE, Sempre libera [Always free], in LA TRAVIATA [THE FALLEN WOMAN] act 1, sc. 5 (1853), available at http://perma.cc/6EZF-AUKY (“Follie! follie . . . !” [“What folly! what folly . . . !”]).

  22. Cf. Antonin Scalia, God’s Justice and Ours, FIRST THINGS (May 2002), http://perma.cc/FY87-852V (“This dilemma, of course, need not be confronted by a proponent of the ‘living Constitution,’ who believes that it means what it ought to mean. If the death penalty is (in his view) immoral, then it is (hey, presto!) automatically unconstitutional. . . . (You can see why the ‘living Constitution’ has such attraction for us judges.”)).

  23. The words sung by the character of Scalia correspond approximately to the poetic structure of the Verdi aria “Sempre libera” [“Always free”]. See VERDI & PIAVE, Sempre libera [Always free], in LA TRAVIATA, supra note [21], at act 1, sc. 5 (“Sempre libera degg’io / folleggiare di gioia in gioia” [“Always free, I must frolic from delight to delight”]).

  24. The words sung by the character of Ginsburg correspond approximately to the rhythms of a Mozart duet. See MOZART & DA PONTE, Aprite, presto, aprite [Open it, quickly, open it], in [LE NOZZE DI FIGARO (THE MARRIAGE OF FIGARO) act 2, sc. 4 (1786) (K. 492), available at http://perma.cc/32JK-Q3PR] (“Fermate, Cherubino!” [“Stop, Cherubino!”]).

  25. Justice Scalia joined the majority opinion in Shelby County v. Holder. See 133 S. Ct. 2612, 2648 (2013) (Ginsburg, J., dissenting) (“[T]he Court’s opinion can hardly be described as an exemplar of restrained and moderate decisionmaking. Quite the opposite.”).

  26. See Adam Liptak, How Activist Is the Supreme Court?, N.Y. TIMES, Oct. 12, 2013, at SR4 (“Justices Antonin Scalia and Ruth Bader Ginsburg are ideological antagonists on the Supreme Court, but they agree on one thing. Their court is guilty of judicial activism.”).

  27. See id. (“ ‘If it’s measured in terms of readiness to overturn legislation, this is one of the most activist courts in history,’ Justice Ginsburg said in August [2013] in an interview with The New York Times. ‘This court has overturned more legislation, I think, than any other.’ ”); Justice Ruth Bader Ginsburg Talks About Judicial Activism, NAT’L CONST. CTR. (Sept. 9, 2013), http://perma.cc/7R6V-ZKAX (“[An activist court] is a court that is not at all hesitant to overturn legislation passed by the Congress . . . . The worst case was [Shelby County v. Holder,] the Voting Rights Act case.”).

  28. Shelby Cnty. v. Holder, 133 S. Ct. 2612 (2013) (Ginsburg, J., dissenting).

  29. See id. at 2636 (2013) (Ginsburg, J., dissenting) (“Congress’ power to act [was] at its height.”).

  30. See Justice Ruth Bader Ginsburg Talks About Judicial Activism, supra note [27] (“Despite the overwhelming majority in Congress that passed the Voting Rights Act, the Court said, ‘that won’t do.’ ”).

  31. See Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2676 (2012) (Scalia, Kennedy, Thomas and Alito, JJ., dissenting) (“The Court regards its strained statutory interpretation as judicial modesty. It is not. It amounts instead to a vast judicial overreaching. . . . The values that should have determined our course today are caution, minimalism, and the understanding that the Federal Government is one of limited powers. But the Court’s ruling undermines those values at every turn. In the name of restraint, it overreaches.”).

  32. Cf., e.g., Atkins v. Virginia, 536 U.S. 304, 338 (2002) (Scalia, J., dissenting) (“Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its Members.”).

  33. Cf. United States v. Virginia, 518 U.S. 515, 601 (1996) (Scalia, J., dissenting) (“It is one of the unhappy incidents of the federal system that a self-righteous Supreme Court, acting on its Members’ personal view of what would make a ‘more perfect union’ (a criterion only slightly more restrictive than a ‘more perfect world’) can impose its own favored social and economic dispositions nationwide.”).

  34. Cf. Shelby Cnty., 133 S. Ct. 2612, 2632 (2013) (Ginsburg, J., dissenting) (“Recognizing that large progress has been made, Congress determined, based on a voluminous record, that the scourge of discrimination was not yet extirpated.”); Fisher v. Univ. of Tex., 133 S. Ct. 2411, 2434 n.4 (2013) (Ginsburg, J., dissenting) (“ ‘Actions designed to burden groups long denied full citizenship stature are not sensibly ranked with measures taken to hasten the day when entrenched discrimination and its aftereffects have been extirpated.’ ” (quoting Gratz v. Bollinger, 539 U.S. 244, 301 (2003) (Ginsburg, J., dissenting))).

  35. Cf., e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469, 520 (1989) (Scalia, J., concurring) (“I do not agree, however, with Justice O’Connor’s dictum suggesting that, despite the Fourteenth Amendment, state and local governments may in some circumstances discriminate on the basis of race in order (in a broad sense) ‘to ameliorate the effects of past discrimination.’ ”).

  36. Cf. MOZART & DA PONTE, Voi che sapete [You who know], in THE MARRIAGE OF FIGARO, supra note [24], at act 2, sc. 2.

  37. Cf. Antonin Scalia, The Disease as Cure: “In Order to Get Beyond Racism, We Must First Take Account of Race,” 1979 WASH. U. L.Q. 147 (1979) (discussing Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978)).

  38. Cf. MOZART & SCHIKANEDER, Der Hölle Rache kocht in meinem Herzen [Hell’s vengeance boils in my heart], in THE MAGIC FLUTE, supra note [16], at act 2, sc. 7 (“Verstoßen sei auf ewig, / verlassen sei auf ewig” [“Be disowned forever, / be forsaken forever”]).

  39. See Fisher, 133 S. Ct. at 2433 (Ginsburg, J., dissenting) (“As for holistic review, if universities cannot explicitly include race as a factor, many may ‘resort to camouflage’ to ‘maintain their minority enrollment.’ ” (quoting Gratz, 539 U.S. at 304 (Ginsburg, J., dissenting))); Fisher, 133 S. Ct. at 2434 (“As the thorough opinions below show . . . the University’s admissions policy flexibly considers race only as a ‘factor of a factor of a factor of a factor’ in the calculus. . . .” (citation omitted)).

  40. See Shelby Cnty., 133 S. Ct. at 2633 (Ginsburg, J., dissenting) (“A century after the Fourteenth and
Fifteenth Amendments guaranteed citizens the right to vote free of discrimination on the basis of race, the ‘blight of racial discrimination in voting’ continued to ‘infec[t] the electoral process in parts of our country.’ Early attempts to cope with this vile infection resembled battling the Hydra.” (quoting South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966))).

  41. See Gratz, 539 U.S. at 288-89 (Ginsburg, J., dissenting) (“This insistence on [judicial consistency] would be fitting were our Nation free of the vestiges of rank discrimination long reinforced by law. But. . . . [i]n the wake ‘of a system of racial caste only recently ended,’ large disparities endure.” (citations omitted) (quoting Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 273-76 & n.8 (1995) (Ginsburg, J., dissenting))). Cf. generally GIUSEPPE VERDI & TEMISTOCLE SOLERA, Va, pensiero [Fly, thought, on wings of gold], in NABUCCO [NEBUCHADNEZZAR] act 3, sc. 2 (1842) (“Chorus of the Hebrew Slaves”).

  42. See Fisher, 133 S. Ct. at 2433-34 (Ginsburg, J., dissenting) (“I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious. . . . [T]he University reached the reasonable, good-faith judgment that supposedly race-neutral initiatives were insufficient to achieve, in appropriate measure, the educational benefits of student-body diversity.” (citations omitted)).

  43. See Adarand, 515 U.S. at 239 (Scalia, J., concurring) (“In my view . . . . [i]ndividuals who have been wronged by unlawful racial discrimination should be made whole but under our Constitution there can be no such thing as a either a creditor or debtor race. . . . In the eyes of government, we are just one race here. It is American.”); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 527-28 (1989) (Scalia, J., concurring) (“[T]hose who believe that racial preferences can help to ‘even the score’ display, and reinforce, a manner of thinking by race that was the source of the injustice and that will, if it endures within our society, be the source of more injustice still.”).

 

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