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Justice Ginsburg discusses the just-ended Term

Andrew Hamm Deputy Manager

Posted Mon, August 3rd, 2015 1:25 pm

Justice Ruth Bader Ginsburg

Justice Ruth Bader Ginsburg

On Wednesday, Justice Ruth Bader Ginsburg spoke with one of her former clerks, Neil S. Siegel, before Duke Law alumni and participants in Duke’s DC Summer Institute on Law and Policy, which Siegel directs. Ginsburg offered general comments the law and her career, as well as specific insights into several key cases from the recently concluded Term.

Before getting into the cases, the conversation opened light-heartedly with a question from Siegel about Scalia/Ginsburg, a new opera about the two Justices.  After simply answering that no, she and Justice Antonin Scalia had not yet seen the show together, a moment’s awkward silence prompted Siegel to change subjects.  But then Ginsburg interrupted, asking Siegel whether he did in fact “want to know a little more about Scalia/Ginsburg the opera?”  The audience laughed, and Ginsburg continued to describe various scenes between her character and Scalia’s.

Transitioning to the just-ended Term, Siegel remarked that once again it was a “headline Term.”  Ginsburg’s response was wry; she commented that “every year” she waits “for the year we’ll be out of the headlines.”  She added that the Court’s docket receives so much attention because “other good minds have been divided” on the cases in which it grants review.  For example, she explained, last fall the Court denied the first round of cert. petitions on same-sex marriage, granting review of a new set of petitions only after the Sixth Circuit’s ruling upholding state bans on same-sex marriage created a circuit split.  This explanation prompted Siegel to ask why the Court had granted review in three other high-profile cases from last Term – King v. Burwell, Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc., and Arizona State Legislature v. Arizona Independent Redistricting Commission — that did not involve a circuit split, only to affirm the decision below.  “Are the criteria changing” for granting review, Siegel asked?  Ginsburg’s response, in short, was no, and she reminded Siegel with a smile that, although it only takes four votes to grant certiorari, it takes five votes to prevail.

On King v. Burwell, in which the Court ruled that subsidies are available under the Affordable Care Act for individuals who purchasing their insurance on an exchange created by the federal government, Ginsburg divulged that she was “not surprised the Court took” the case even though there was “no sensible way of reading that statute other than how” Chief Justice John Roberts read it.

Turning to Obergefell v. Hodges, in which the Court ruled that there is a constitutional right to same-sex marriage, Siegel asked Ginsburg how she would have written the opinion.  Praising a section of Justice Anthony Kennedy’s opinion for the Court on equal protection, she explained that she would have further expanded the discussion.  Here she provided a bit of context for understanding Equal Protection claims as they pertain to marriage.  The issue before the Court in the same-sex marriage cases, she argued, is “only imaginable” as a case since 1982.  Before then, as a legal matter marriage was a “relationship of dominant and subordinate; the nature of the union was not between equals.”  But in 1982, the Court relied on equal protection to strike down a Louisiana law stating that although a husband and wife each owned half of their shared possessions, the husband controlled the use of all of those possessions.  In striking down this law, Ginsburg concluded, the Court changed marriage into an institution between equal, consenting adults, which opened the way for an argument for same-sex marriage on those terms.

‘Why,” Siegel then asked, “did you not write a separate, concurring opinion?”  Ginsburg responded that, given the importance of the case, she did not want to write separately “because it was more powerful to have a single opinion.”  She recalled Bush v. Gore and its four dissents, which confused journalists who did not know how to understand what had happened.  Because everyone must abide by the Court’s decisions, she emphasized, it is “better to have it clearer than confusing.”  She revealed that in her office she keeps a book of the unpublished opinions of Justice Louis Brandeis, describing it as inspiring “that a man who took the time, many hours, to write these opinions, decided nonetheless it was better to join the majority.”

In a final question about same-sex marriage, Siegel referred to Ginsburg’s general preference for moving the law incrementally:  what changed between 2013 and 2015, he asked?  Ginsburg distinguished the same-sex marriage cases as a “completely different situation from Roe v. Wade.”  In the early 1970s, she explained, “in the political arena [abortion] law was in a state of flux.”  In her view, the Court should have deemed the Texas abortion ban at issue in Roe unconstitutional, because it had very few exceptions, but it should have limited its ruling to just that law.  In ruling as broadly as it did, the Court’s decision also invalidated even the most liberal abortion laws, which went “too far too fast.”  This is different from the same-sex marriage cases, in which the question before the Court was itself national in scope.  Ginsburg singled out the late Thurgood Marshall as a role model here, explaining that as a civil rights advocate Marshall took great care to emphasize the exact question that was before the Court, with many early challenges to segregation taking the position, in Ginsburg’s words, that “‘separate but equal’ is not before the Court; these buildings are not equal.”  It was not until 1954, in Brown v. Board of Education, that Marshall argued that separate was inherently unequal.

Other topics of conversation included cameras and audio in the Court.  Stressing that the Court has “almost simultaneous audio now,” Ginsburg maintained that cameras would be bad for the Court because it would give the public the impression that oral argument was more important than written briefs in the decision-making process.  And in response to a question from a member of the audience about the decision that most disappointed her, Ginsburg singled out Citizens United v. FEC, “because of what has happened to elections in the US and the huge amount of money it takes now to run for office.” By contrast, she observed that her favorite decisions were United States v. Virginia, in which the Court struck down the Virginia Military Institute’s all-male admissions policy, and Ledbetter v. Goodyear Tire & Rubber Co, on the ground that “sometimes losers turn out to be winners.”

Andrew Hamm, Justice Ginsburg discusses the just-ended Term, SCOTUSblog (Aug. 3, 2015, 1:25 PM), http://www.scotusblog.com/2015/08/230798/