“Acknowledging The Usual Suspects”: Justice Ginsburg Says The Supreme Court Is “One Of The Most Activist”
Justice Ruth Bader Ginsburg, 80, vowed in an interview to stay on the Supreme Court as long as her health and intellect remained strong, saying she was fully engaged in her work as the leader of the liberal opposition on what she called “one of the most activist courts in history.”
In wide-ranging remarks in her chambers on Friday that touched on affirmative action, abortion and same-sex marriage, Justice Ginsburg said she had made a mistake in joining a 2009 opinion that laid the groundwork for the court’s decision in June effectively striking down the heart of the Voting Rights Act of 1965. The recent decision, she said, was “stunning in terms of activism.”
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.
On Friday, she said repeatedly that the identity of the president who would appoint her replacement did not figure in her retirement planning.
“There will be a president after this one, and I’m hopeful that that president will be a fine president,” she said.
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.
Justice Ginsburg has survived two bouts with cancer, but her health is now good, she said, and her work ethic exceptional. There is no question, on the bench or in chambers, that she has full command of the complex legal issues that reach the court.
Her age has required only minor adjustments.
“I don’t water-ski anymore,” Justice Ginsburg said. “I haven’t gone horseback riding in four years. I haven’t ruled that out entirely. But water-skiing, those days are over.”
Justice Ginsburg, who was appointed by President Bill Clinton in 1993, said she intended to stay on the court “as long as I can do the job full steam, and that, at my age, is not predictable.”
“I love my job,” she added. “I thought last year I did as well as in past terms.”
With the departure of Justice John Paul Stevens in 2010, Justice Ginsburg became the leader of the court’s four-member liberal wing, a role she seems to enjoy. “I am now the most senior justice when we divide 5-4 with the usual suspects,” she said.
The last two terms, which brought major decisions on Mr. Obama’s health care law, race and same-sex marriage, were, she said, “heady, exhausting, challenging.”
She was especially critical of the voting rights decision, as well as the part of the ruling upholding the health care law that nonetheless said it could not be justified under Congress’s power to regulate interstate commerce.
In general, Justice Ginsburg said, “if it’s measured in terms of readiness to overturn legislation, this is one of the most activist courts in history.”
The next term, which begins on Oct. 7, is also likely to produce major decisions, she said, pointing at piles of briefs in cases concerning campaign contribution limits and affirmative action.
There is a framed copy of the Lilly Ledbetter Fair Pay Act of 2009 on a wall in her chambers. It is not a judicial decision, of course, but Justice Ginsburg counts it as one of her proudest achievements.
The law was a reaction to her dissent in Ledbetter v. Goodyear Tire and Rubber Company, the 2007 ruling that said Title VII of the Civil Rights Act of 1964 imposed strict time limits for bringing workplace discrimination suits. She called on Congress to overturn the decision, and it did.
“I’d like to think that that will happen in the two Title VII cases from this term, but this Congress doesn’t seem to be able to move on anything,” she said.
“In so many instances, the court and Congress have been having conversations with each other, particularly recently in the civil rights area,” she said. “So it isn’t good when you have a Congress that can’t react.”
The recent voting rights decision, Shelby County v. Holder, also invited Congress to enact new legislation. But Justice Ginsburg, who dissented, did not sound optimistic.
“The Voting Rights Act passed by overwhelming majorities,” she said of its reauthorization in 2006, “but this Congress I don’t think is equipped to do anything about it.”
Asked if she was disappointed by the almost immediate tightening of voting laws in Texas and North Carolina after the decision, she chose a different word: “Disillusioned.”
The flaw in the court’s decision, she said, was to conclude from the nation’s progress in protecting minority voters that the law was no longer needed. She repeated a line from her dissent: “It is like throwing away your umbrella in a rainstorm because you are not getting wet.”
Chief Justice John G. Roberts Jr. wrote the majority opinion, and he quoted extensively from a 2009 decision that had, temporarily as it turned out, let the heart of the Voting Rights Act survive. Eight members of the court, including Justice Ginsburg, had signed the earlier decision.
On Friday, she said she did not regret her earlier vote, as the result in the 2009 case was correct. But she said she should have distanced herself from the majority opinion’s language. “If you think it’s going to do real damage, you don’t sign on to it,” she said. “I was mistaken in that case.”
Some commentators have said that the two voting rights decisions are an example of the long game Chief Justice Roberts seems to be playing in several areas of the law, including campaign finance and affirmative action. Justice Ginsburg’s lone dissent in June’s affirmative action case, leaving in place the University of Texas’ admissions plan but requiring lower courts to judge it against a more demanding standard, may suggest that she is alert to the chief justice’s apparent strategy.
Justice Ginsburg is by her own description “this little tiny little woman,” and she speaks in a murmur inflected with a Brooklyn accent. But she is a formidable force on the bench, often asking the first question at oral arguments in a way that frames the discussion that follows.
She has always been “a night person,” she said, but she has worked even later into the small hours since her husband, Martin D. Ginsburg, a tax lawyer, chef and wit, died in 2010. Since then, she said, there is no one to call her to bed and turn out the lights.
She works out twice a week with a trainer and said her doctors at the National Institutes of Health say she is in fine health.
“Ever since my colorectal cancer in 1999, I have been followed by the N.I.H.,” she said. “That was very lucky for me because they detected my pancreatic cancer at a very early stage” in 2009.
Less than three weeks after surgery for that second form of cancer, Justice Ginsburg was back on the bench.
“After the pancreatic cancer, at first I went to N.I.H. every three months, then every four months, then every six months,” she said. “The last time I was there they said come back in a year.”
Justice Ginsburg said her retirement calculations would center on her health and not on who would appoint her successor, even if that new justice could tilt the balance of the court and overturn some of the landmark women’s rights decisions that are a large part of her legacy.
“I don’t see that my majority opinions are going to be undone,” she said. “I do hope that some of my dissents will one day be the law.”
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.
The fireworks at the end of the last term included three dissents announced from the bench by Justice Ginsburg. Such oral dissents are rare and are reserved for major disagreements.
One was a sharp attack on Justice Samuel A. Alito Jr.’s majority opinion in a job discrimination case, and he made his displeasure known, rolling his eyes and making a face.
Justice Ginsburg said she took it in stride. “It was kind of a replay of the State of the Union, when he didn’t agree with what the president was saying” in 2010 about the Citizens United decision. “It was his natural reaction, but probably if he could do it again, he would have squelched it.”
By: Adam Liptak, The New York Times, August 24, 2013
Dr. John J. Sciarra remembers his time as a young doctor in New York City nearly half a century ago. He remembers watching young women die from botched, illegal abortions because they had no safe options. At the time, he felt powerless to help them, and that fact haunted him.
That’s why he decided to join 99 of his fellow OB-GYNs to express his support for legal abortion. In 1972, that group of doctors published a statement in the American Journal of Obstetrics and Gynecology to make the case that giving women the means to end their pregnancies is a public health issue. Their timing was prescient; Roe v. Wade ended up legalizing abortion just one year later.
But, in the 40 years since, Sciarra has been surprised to see the state of reproductive rights moving backward instead of forward. “We did not anticipate the backlash that has turned abortion into an ideological battleground,” the retired doctor writes in a op-ed published in the Chicago Tribune on Friday. “So I have again joined 99 of my fellow professors of obstetrics and gynecology in another statement on the issue, published earlier this year, in the very same American Journal of Obstetrics and Gynecology.”
In the new statement, Sciarra and 99 of his colleagues point out that even though abortion has been legalized and medical practice has evolved to accommodate a new range of reproductive care, the politicization of the issue still threatens to derail women’s reproductive rights. When Sciarra first advocated for abortion rights back in the 1970s, he and his fellow OB-GYNs imagined that the “increasingly liberal course of events” in the U.S. would create a rising demand for abortion care. They thought the biggest problem facing the country would be a shortage of doctors available to perform abortions. It turns out they were wrong — the biggest problem is actually the web of state-level abortion restrictions that come between women and their doctors.
“We have had 40 years of medical progress but have witnessed political regression that the 100 professors did not anticipate,” their official statement noted. “Forty years later, the change is not liberal. Its effects will threaten, not improve, women’s health and already obstruct physicians’ evidence-based and patient-centered practices.”
Sciarra is just one of two OB-GYNs who signed both statements — the original one before Roe v. Wade, and the new one earlier this year — because most of the doctors who signed on four decades ago have since passed away. Sciarra notes that none of the doctors who signed the 1972 statement ever changed their minds and rescinded their support for legal abortion rights. And now, a new generation of medical professionals is reaffirming that position with the 2013 statement.
The doctors’ new statement is well-timed. Despite the fact that Roe marked its 40th anniversary recently, reproductive rights are being chipped away from every angle. And 2013 is shaping up to be one of the worst years for reproductive freedom since abortion was first legalized. State legislatures have enacted a record-breaking number of new abortion restrictions this year, including some of the harshest bans ever seen in the past four decades.
Sciarra and his colleagues aren’t the only medical professionals coming out against the mounting pile of politically-motivated abortion restrictions. The nation’s largest group of OB-GYNs, the American College of Obstetricians and Gynecologists, also recently condemned anti-abortion laws for “imposing a political agenda on medical practice.”
By: Tara Culp-Ressler, Think Progress, July 11, 2013
Republicans have once again rolled their old war horse out of the barn for another run at the Constitution. This time the anti-abortion crowd has decided the viability of a fetus outside the womb should be twenty weeks, defying scientific evidence and the Supreme Court‘s settled judgment in repeated cases. Never mind, once again House Republicans oblige by passing the measure, this time accompanied by sly little sex jokes about masturbating male fetuses.
And then what? And then nothing. Talk about masturbation—this is an empty ritual the old bulls of the GOP have been performing for forty years, ever since Roe v. Wade. Sometimes they have even gotten a law enacted. But the story ends the same way—rejection by the Supreme Court, conservative though it is. This time there won’t be any new law, since Senate Democrats won’t allow it. Yet the juggernaut cranks up for another run.
Marjorie Dannenfelser, president of an anti-abortion political action group, called the House vote “historic.” Activists boast that they are winning big at the state level. Fourteen states so far this year have enacted a storm of newly restrictive laws at the state level, suggesting that the anti-abortion cause is cresting anew.
Actually, no. If you look at those fourteen states—from Alabama to Utah—they are pretty much the same states that have been doing this for decades, mostly under-populated and rural. I did a little “back of the envelope” calculation and determined that the fourteen states represent 15 percent of the US population, 47 million out of 308 million.
Many of the states are also from the Deep South. That region has lots of experience defying Supreme Court decisions—the experience of losing in the long run.
By: William Greider, The Nation, June 19, 2013
Judge Edith H. Jones of the 5th Circuit Court of Appeals is facing serious allegations this week after controversial remarks the jurist made at Federalist Society in February. According to the conservative group, there is no transcript of recording of Jones’ speech, but affidavits from attendees point to deeply problematic language from anyone, least of all a sitting federal judge.
According to the [ethics] complaint, Judge Jones, 64, who was nominated to the bench by President Ronald Reagan, and who until recently was the chief judge of the Fifth Circuit and mentioned during Republican administrations as a possible Supreme Court nominee, said that “racial groups like African-Americans and Hispanics are predisposed to crime.”
One of the affidavits accompanying the complaint is from Marc Bookman, a veteran death penalty lawyer in Pennsylvania, who attended the lecture. He quoted Judge Jones as saying, “Sadly, some groups seem to commit more heinous crimes than others.” When asked to elaborate, Judge Jones “noted there was no arguing that ‘blacks’ and ‘Hispanics’ far outnumber ‘Anglos’ on death row and repeated that ‘sadly’ people from these racial groups do get involved in more violent crime,” the affidavit said.
A variety of civil rights organizations and legal ethicists this week filed a complaint of misconduct. An affidavit from James McCormack, the former chief disciplinary counsel for the Texas bar, added that he believes Jones “violated the ethical standards applicable to federal judges under the Code of Conduct for United States judges.”
Making matters slightly worse, this wasn’t the only offensive comment Jones made at the event.
Judge Jones is alleged to have said that the defenses often offered in capital cases, including mental retardation and systemic racism, were “red herrings.” She also said, according to the witnesses, that Mexicans would prefer to be on death row in the United States rather than in prison in Mexico.
It would appear that defendants have reason to question whether Jones is a fair and impartial arbiter of justice. Indeed, if I were a criminal defense attorney, and my client’s conviction rested in part on a ruling from Jones, I’d probably have new grounds for an appeal.
The matter will reportedly be reviewed by the 5th circuit’s chief judge. It’s a controversy worth watching.
Postscript: When Jones was on a very short list of jurists then-President George W. Bush was considering for the U.S. Supreme Court in 2005, the Washington Post published this brief profile, noting, “Known as a strong and outspoken conservative, she has written opinions that called into question the reasoning behind the Roe v. Wade abortion ruling, has been an advocate for speeding up death penalty executions, and is a vocal proponent of ‘moral values.’ She also wrote a 1997 opinion throwing out a federal ban on the possession of machine guns and has been an advocate for toughening bankruptcy laws.”
By: Steve Benen, The Maddow Blog, June 5, 2013
“Correcting The Record Of Strategic Disinformation”: We Have The Most Conservative Supreme Court In Decades
In recent years, the United States Supreme Court has turned corporate treasuries into campaign slush funds for CEOs, demolished campaign finance laws, aided and abetted pay discrimination, made it much harder for consumers and workers to file class action lawsuits against corporations that have cheated them, and kindly delivered the White House to one lucky Republican from Texas.
Study after study has found that the Supreme Court under Chief Justice John Roberts and his predecessor William Rehnquist has swerved hard to the right, systematically favoring corporate interests over workers, consumers and voters — to a shocking extent.
So why does a plurality of Americans still think that the Supreme Court leans to the left?
A new poll from Public Policy Polling finds that 36 percent of Americans believe the Supreme Court is “too liberal,” compared with just 30 percent who find it “too conservative” and 29 percent who think it’s ideologically “about right.” The poll highlights a problem that has long plagued progressives who care about the courts: while the Supreme Court and lower federal courts continue to drive to the right, many Americans, strangely, have come to believe that the courts tilt to the left.
This misperception of the federal judiciary, and especially the Supreme Court, is no fluke. It is the residue of more than a half-century of propaganda by the right labeling the Supreme Court a bastion of runaway liberal judicial activists who supersede the will of the people to impose their own views on innocent Americans. This campaign began with “massive resistance” to landmark civil rights and civil liberties decisions of the Warren Court, most notably Brown v. Board of Education (1954), which desegregated the schools and prompted an “impeach Earl Warren” movement; Engel v. Vitale (1962), which struck down compulsory prayer in the schools and was blamed for the moral downfall of America; and Miranda v. Arizona (1966), which gave people basic rights in encounters with the police and was decried as “pro-criminal.” The campaign against the Court intensified with the response to Roe v. Wade (1973), which recognized the reproductive rights of women as a matter of constitutional privacy but has been depicted ever since by the right as the epitome of illegitimate judicial activism.
The movement to turn the clock back on civil rights and civil liberties in the courts has continued for decades and been bolstered by the Chamber of Commerce and big business, which want to see the federal judiciary enshrine new constitutional rights for corporations while dismantling public regulation.
In recent decades, right-wing leaders have worked in popular culture to attack the courts as a liberal peril while successfully organizing to dominate and control legal institutions to create courts that no longer look out for the rights of all Americans. They have set up law schools and legal societies to promote corporate and right-wing commitments, have promoted the appointment of reactionary judges and Justices, blocked the appointment of even moderate jurists, and defined a legal agenda that subordinates individual rights to government power and public regulation to corporate power. Right-wing success in remaking the judiciary in the image of the Republican Party has not led conservatives to curb their bitter attack on “liberal judicial activism,” a fantasy that is several decades out of date but indispensable to this smoke-and-mirrors operation.
Without mass education by progressives to reclaim the public narrative about the courts, popular illusions about the nature of our right-wing judiciary will persist. A perfect example of public confusion is the reaction to the Supreme Court’s narrow decision to uphold the Affordable Care Act. Chief Justice Roberts’ decisive vote to uphold the law was hailed on the left and seen as a stunning betrayal on the right. But what got little attention was how conservative the logic of the decision to uphold the ACA really was. While the final outcome was good news for progressives, Roberts’ opinion laid the groundwork for severely restricting the ability of the federal government to solve national problems under the Commerce Clause — harkening back to the gilded-age Lochner Era, when the Supreme Court routinely struck down regulatory protections for ordinary Americans.
The left needs to wake up. PPP found that less than half of Democrats recognized the conservative leaning of the Supreme Court. As the Supreme Court’s blockbuster decisions on marriage equality, voting rights and affirmative action come down this spring we may have some reasons to celebrate and others to mourn. But we will doubtless be reminded again that Supreme Court decisions often have much less to do with evolving legal theory than with which president appointed the Justices. Conservatives know this and liberals need to wake up to it as well.
Four decades into conservative control of the Supreme Court (through the Burger, Rehnquist and Roberts Courts), and well into President Obama’s second term, conservatives still promote the absurd story that the Supreme Court and judiciary are “liberal.” We must do everything we can to correct the record and dispel the lingering false impressions left by decades of strategic disinformation.
By: Michael B. Keegan, The Huffington Post, May 24, 2013