August 25, 2013

Why is the NYT publishing yet another article on the fact that Justice Ginsburg is not resigning from the Supreme Court?

I was a bit surprised to see this article, with a big picture, at the top center of the NYT on-line front page today. It's utter non-news. So what's the point? She did an interview with Adam Liptak, but just last June, we'd heard the same thing, in the pages of the NYT, from Linda Greenhouse.

Let's look at Liptak's article as opposed to the front-page teaser, which says: "Amid calls from some liberals that she step down in time for President Obama to name her successor, Justice Ruth Bader Ginsburg said she was fully engaged in her work." Think about why that is the teaser. But Liptak is writing because he got an interview:
Unless they have a book to sell, Supreme Court justices rarely give interviews. Justice Ginsburg has given several this summer, perhaps in reaction to calls from some liberals that she step down in time for President Obama to name her successor.
So maybe Ginsburg is talking because of political pressure about Obama's appointment opportunities, but I find that hard to believe. She's obviously not talking about that, so it's an editorial insertion, and it's therefore what the NYT editors think will pique the interest of readers. To me, a reader, it seemed really dumb, flaunting the nonnewsiness of the article. Here's another Obama-related insertion:
Were Mr. Obama to name Justice Ginsburg’s successor, it would presumably be a one-for-one liberal swap that would not alter the court’s ideological balance. But if a Republican president is elected in 2016 and gets to name her successor, the court would be fundamentally reshaped.
In case you didn't know!

So. Onto the substance of the interview:
“I am now the most senior justice when we divide 5-4 with the usual suspects,” she said.

The last two terms... were...  “heady, exhausting, challenging.”

“[I]f it’s measured in terms of readiness to overturn legislation, this is one of the most activist courts in history.”
What if it's measured in terms of acceptance of the duty to enforce the Constitution? That's a trick question. Answer: It's the same thing! (And that makes this post another occasion for my favorite tag: Paraphrase.)

The article goes on to talk about the Lilly Ledbetter Fair Pay Act of 2009, which was a congressional response to Ledbetter v. Goodyear Tire and Rubber Company, in which Ginsburg dissented. She notes that there were 2 Title VII case this past term, but that Congress is unlikely to reverse them by statute, because, she says, "this Congress doesn’t seem to be able to move on anything," and: "In so many instances, the court and Congress have been having conversations with each other, particularly recently in the civil rights area.... So it isn’t good when you have a Congress that can’t react."

Do you see Liptak's sleight of hand there? He went from her characterization of the Court as activist because of its "readiness to overturn legislation," to the idea of legislation overturning a court decision, but Congress can't overturn a decision that "overturns" legislation, and Ledbetter wasn't a case that overturned legislation! Ledbetter was an interpretation of a statute, so Congress was free to amend it and did. To interpret a statute isn't to overturn it. It's to read it, and Congress can change the text if it doesn't like that reading. It's not "activist" to decline to give an expansive interpretation to a statute, which is what Ginsburg wanted in her Ledbetter dissent.

When a statute is overturned because it's inconsistent with the Constitution, you can call that "activist" or you can call that meeting a judicial duty, but you can't go to Congress to get that decision overturned. [NOTE: Congress can initiate a constitutional amendment, and there are sometimes ways to rewrite a statute to solve a constitutional problem. I don't think Ginsburg was referring to that.]

Ginsburg does display some resistance to activism with respect to constitutional rights:
She said that as a general matter the court would be wise to move incrementally and methodically. It had moved too fast, she said, in Roe v. Wade, the 1973 decision that established a constitutional right to abortion. The court could have struck down only the extremely restrictive Texas law before it.

“I think it’s inescapable that the court gave the anti-abortion forces a single target to aim at,” she said. “The unelected judges decided this question for the country, and never mind that the issue was in flux in the state legislatures.”

The question of same-sex marriage is also in flux around the nation. In June, the court declined to say whether there was a constitutional right to same-sex marriage, allowing the issue to percolate further. But Justice Ginsburg rejected the analogy to the lesson she had taken from the aftermath of the Roe decision.

“I wouldn’t make a connection,” she said.
Hmm. Why not?! I'm guessing it's because Roe v. Wade is already decided. Nothing she can do will change that. The same-sex marriage issue is not yet completely resolved, and she will, in most likelihood, participate. That's a reason to simply refuse to talk about it, but I suspect, in addition to that, she will embrace the right with even more breadth and confidence than the Court in Roe v. Wade accepted abortion. This notion of allowing the difficult matter to be worked out in the political process... she won't make a connection.


In my Constitutional Law II exam last spring, written before the Supreme Court's decision in Windsor, I began a question this way (boldface added):
Here’s a section from one of the briefs in United States v. Windsor, the case in which the Supreme Court is considering whether a section of the Defense of Marriage Act is unconstitutional.
The benefits of our federalist system resonate with especial clarity regarding the same-sex marriage debate…

Preemptively short-circuiting the democratic process by announcing only one permissible policy choice by any government under the Constitution destroys these benefits and should not occur unless the Constitution clearly mandates the legitimacy of only one outcome. The Nation's experience in the wake of Roe v. Wade bears this out. See Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, (remarking that Roe has "sparked public opposition and academic criticism, in part . . . because the Court ventured too far in the change it ordered and presented an incomplete justification for its action). J. Harvie Wilkinson, III, Of Guns, Abortions, and the Unraveling Rule of Law, (observing that Roe "shut down this process of legislative accommodation, polarizing the debate and making future compromise more difficult," leading "[m]any scholars" to comment on the "Roe backlash" and the intense partisan divide that has resulted).

Outrage in the wake of Roe occurred despite increasing public support for abortion and a "marked trend in state legislatures 'toward liberalization of abortion statutes."' Ruth Bader Ginsburg, Speaking in a Judicial Voice (quoting Roe v. Wade); see also Thoughts on Autonomy ("The political process was moving in the early 1970s, not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting."). But the Court's "[h]eavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict." Thoughts on Autonomy, supra, at 385-86. Unlike the Court's previous decisions concerning gender classifications, Roe provoked backlash because it "invited no dialogue with legislators" and "seemed entirely to remove the ball from the legislators' court." Judicial Voice, supra, at 1205.

Not only did Roe produce conflict, it was also an ineffective engine of social change. The Court's abrupt adjustment of national policy "may have prevented state legislatures from working out long-lasting solutions based upon broad public consensus." Cass R. Sunstein, Three Civil Rights Fallacies. Professor Sunstein observed that Roe's effectiveness "has been limited, largely because of its judicial source."
Of course, Justice Ginsburg didn't agree with the side that wrote that. She showed — to use her definition of activism, above — a readiness to overturn legislation.


Wince said...

Unless they have a book to sell, Supreme Court justices rarely give interviews. Justice Ginsburg has given several this summer, perhaps in reaction to calls from some liberals that she step down in time for President Obama to name her successor.

Or as self-defense to attract attention if she dies under questionable circumstances.

Hagar said...

Well, they are getting antsy about it.

Left Bank of the Charles said...

I'm sure Ted Kennedy felt the same way, and look how his ill-timed death turned out for the Obama administration.

Ruth is signaling that she wants to hold out for Hillary, much like Ted wanted to hold out for passage of health care.

Rosalyn C. said...

To tell people to back off.

I know that there are many people on the left aggressively lobbying Ginsberg to resign and encouraging others to do the same. You don't hear about it in the media. I attended a speech recently by where the speaker was strongly advocating for Ginsberg to resign and encouraging the audience to write Ginsberg. I was taken aback by the viciousness and the self righteousness of that demand. But the Left believes that all will be irrevocably lost if the Conservatives get another vote in the SCOTUS.

David said...

My question is, why is she giving interviews?

Tweak, tweak!

Moose said...

I think the article is just another excuse to, once again, call the Roberts' court "Activist".

David said...

"“I think it’s inescapable that the court gave the anti-abortion forces a single target to aim at,” she said. “The unelected judges decided this question for the country, and never mind that the issue was in flux in the state legislatures.”

Which has been my main objection all along. We are still paying for the institutional arrogance of Roe.

I have said essentially the same thing to many of my liberal friends over the years. (Yes, I have liberal friends.) Having completely embraced the arrogance of Roe, they are derisive. Would they deride Justice Ginsburg?

Big Mike said...

What R. Chatt said.

I think Ginsberg has this notion that she is a judge impartially evaluating cases before the Court. Among lefties, such a notion is regarded as quaint. Ginsberg is supposed to be prepared to take one for the team.

SteveR said...

I have no expectation that her replacement will change anything other than being a 30 year younger version of the same mindset'

So basically this was entirely predictable on election night 2008. To me not worth talking about, at this point.

geokstr said...

Professor, why assume that a Supreme nominated by an R would "fundamentally transform" the court? If that were even remotely true, we should have been back to strict constructionism and much more limited government long ago.

Instead, we got Souter, and O'Connor, and Stevens, and Warren, and Burger and more.

Now the latest to twist the constitution and rule of law into moebius strips, we have Roberts, who rewrote ObamaCare so the could find it constitutional and ruled that AZ could not enforce US immigration law if the federal government refused to do so, regardless of how disastrous it was for their state.

If Republican nominees were as faithful to the belief that the constitution means something as opposed to Democrats who believe it means only what they want it to, we would live in a far different country right now.

I've asked on Volokh a number of times where the Democratic Souter is, and got Whizzer White from a long time ago. What happened there was he was always a classical liberal but his party moved far to his left.

JRoberts said...

Perhaps FLOTUS has made it known to her friends at the NYT that she has completed redecorating the White House and is looking for a new role that will allow her to be truly proud to be an American.

From Inwood said...

Big Mike

You write: I think Ginsberg has this notion that she is a judge impartially evaluating cases before the Court.

Up to a point.

I think that, like the RC Pope, Ginsberg has this notion that she is speaking ex cathedra in evaluating cases before the Court, such authority coming from a "proper" reading of the 14th Amendment & such thought being sanctified through, well, be quiet, who are you anyway, Rush Limbaugh? And we leftist would-be High Moral Elite overlords simply can't have that.

Maybe Lefties can remind her that even a Pope has stood down due to the vicissitudes of old age.

Hagar said...

" Why assume that a Supreme nominated by an R would "fundamentally transform" the court?"

Perhaps not, but why take chances?

zefal said...

Ruth Ginsberg during her confirmation hearings said the intent of the law didn't matter but what was written did. Point taken and accepted.

She soon, after stating this, went on to claim her reasoning for opposing a law that gave the death penalty for rapists, that she wrote as a law professor, was unconstitutional because the intent of the male legislators were to oppress women.

How did she know this? She didn't say. So the motivation mattered (as claimed by her leftist majesty) but not the legislators' intent when they passed a law.

Women were oppressed by this, she claimed, because the law was meant to
claim ownership of women by men, and that these men wanted the death penalty because THEIR property had been damaged.

How did she know this? She didn't say. Leftists esp? Since there weren't any/many women legislators this negated the legitimacy of the law. Of course she negated the will of the women who voted for these men but all in a smug leftist's day at the office, I guess!

of course if it had been all black women legislative body who had passed such a law she would have found another lame excuse to claim it unconstitutional.

I'm all for conservative judicial activism to combat the left's use of this BS. RBG is nothing more than a tyrant in a robe.

I hope she stays on the court through obama's tyrancy, though. Just to spite the obama administration and congressional democrats who have been trying to bully her off the court since 2009.

I know someone who interned for a dem female senator in 2009. She, the intern, was livid at RBG's refusal to pay heed to their wishes to push her out. I suspect this young person didn't come by this indignation towards RBG on her own.

Mitch H. said...

Generalissimo Fransisco Franco is still dead.