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“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

August 25, 2013 Posted by | Supreme Court | , , , , , , , , | 3 Comments

Rick Perry To “Activist Judges”: Save Me

Rick Perry appears to be riding into the sunset, but he is not leaving the stage without exercising a true politician’s prerogative of cheerfully sacrificing any principle, no matter how strongly stated, when it becomes inconvenient.

If there’s one thing we know about Perry — one dry-gulch bedrock to his cowboy constitutional philosophy — it’s that he just hates them activist judges and all the perverted things they have done to the Fourteenth Amendment. “[T]he Fourteenth Amendment is abused by the Court to carry out whatever policy choices it wants to make in the form of judicial activism,” he lamented in his book, Fed Up! Our Fight to Save America from Washington. In particular, courts “should be particularly protective of our founding structure — a unique structure of dual sovereigns that placed power as close to the people as was practical so that the people could govern themselves.”

Surely that would mean that the people of Virginia should have a right to determine what level of support a candidate needs to be a serious presidential candidate, deserving of a place on its primary ballot? Or should that decision be made by “unelected judges”?

Well, actually, unelected judges are suddenly looking right good to Gov. Perry.

Perry last week failed to qualify for the Virginia Republican Primary ballot, both a humiliating blow to his dignity and a concrete setback to his hope of remaining in the presidential race after his expected low showing in Iowa.

Well, that don’t sit right with Perry, and now he is shopping for a judge who will agree. In a lawsuit filed Monday, Perry asks the federal courts to step in on his behalf. Nothing too startling about that — if Perry feels the Virginia authorities had cheated him in some way that violates federal law or the Constitution, he has every right to invoke these sources of law in a court. But what’s remarkable is the second count of his suit, in which he asks the District Court for the Eastern District of Virginia to invent a new constitutional norm about how many signatures a state can require for its ballots. (Newt Gingrich so far has not filed a suit, and his campaign contented itself with a characteristically nuanced statement comparing the long-announced ballot-access rule to the Japanese attack on Pearl Harbor.)

To qualify for the ballot, a presidential candidate has to collect the signatures of 10,000 registered Virginia voters who would attest that they intend to vote in the GOP primary. It’s steep — the 2008 Republican primary attracted just shy of 500,000 voters, making this a requirement of 2 percent of the votes cast — but hardly a staggering burden in a commonwealth of more than 5 million registered voters.

Perry didn’t fall a little short of his goal. He fell real short. By his own admission, he filed more than 6,000 valid signatures — 40 percent less than the required total.

In his suit, Perry makes two claims. One has some support in the caselaw — he says that by requiring the signature gatherers to be eligible Virginia voters, the state violates a line of cases that say that the First Amendment protects the right to use out-of-state personnel to gather signatures on some ballot petitions.

But the second claim comes screaming out of the clear blue Texas sky. “Virginia’s requirement that a presidential primary candidate collect signatures from 10,000 qualified voters, including 400 qualified voters from each Congressional district in the Commonwealth… violates freedom of speech and association protected by the First and Fourteenth Amendments to the Constitution,” Perry’s complaint alleges.

I’m no election-law specialist, but I don’t know any caselaw supporting this. Perry sure doesn’t cite any. In the context of minor-party ballot access, the Supreme Court has repeatedly held that (as it determined in Anderson v. Celebrezze) states have “undoubted right to require candidates to make a preliminary showing of substantial support in order to qualify for a place on the ballot….” In 1986, it approved a requirement that the Socialist Workers Party get signatures amounting to 1 percent of the voters in the state to qualify for the ballot. Perry was required to get 2 percent of the ballots cast — or, to put it another way, one-fifth of one percent of the eligible voters. His signers had to state that they intended to vote in the Republican primary, which limits the field somewhat, but the opportunity was still there.

Why is 10,000 too many but 6,000 is not? What’s the rule? Texas requires 4,500, meaning 300 each from at least 15 Congressional districts. Is that reasonable, but 10,000, including 400 from each of 11 Congressional Districts, is not? Perry’s suit is a request — a desperate plea — for a court to invent a rule. Even if you or I might see a problem with the signature requirement (I admit I don’t), this is precisely the kind of federal court meddling in local affairs that he thumps his chest against when it benefits criminal defendants, gay men and lesbians, or religious dissenters.

Why is there never an activist judge when you need one?


By: Garrett Epps, The Atlantic, December 29, 2011

December 30, 2011 Posted by | Courts, Election 2012 | , , , , , | Leave a comment

On Health Care, Justice Will Prevail

The lawsuits challenging the individual mandate in the health care law, including one in which a federal district judge last week called the law unconstitutional, will ultimately be resolved by the Supreme Court, and pundits are already making bets on how the justices will vote.

But the predictions of a partisan 5-4 split rest on a misunderstanding of the court and the Constitution. The constitutionality of the health care law is not one of those novel, one-off issues, like the outcome of the 2000 presidential election, that have at times created the impression of Supreme Court justices as political actors rather than legal analysts.

Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut. Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has the power to regulate?

Many new provisions in the law, like the ban on discrimination based on pre-existing conditions, are also undeniably permissible. But they would be undermined if healthy or risk-prone individuals could opt out of insurance, which could lead to unacceptably high premiums for those remaining in the pool. For the system to work, all individuals — healthy and sick, risk-prone and risk-averse — must participate to the extent of their economic ability.

In this regard, the health care law is little different from Social Security. The court unanimously recognized in 1982 that it would be “difficult, if not impossible” to maintain the financial soundness of a Social Security system from which people could opt out. The same analysis holds here: by restricting certain economic choices of individuals, we ensure the vitality of a regulatory regime clearly within Congress’s power to establish.

The justices aren’t likely to be misled by the reasoning that prompted two of the four federal courts that have ruled on this legislation to invalidate it on the theory that Congress is entitled to regulate only economic “activity,” not “inactivity,” like the decision not to purchase insurance. This distinction is illusory. Individuals who don’t purchase insurance they can afford have made a choice to take a free ride on the health care system. They know that if they need emergency-room care that they can’t pay for, the public will pick up the tab. This conscious choice carries serious economic consequences for the national health care market, which makes it a proper subject for federal regulation.

Even if the interstate commerce clause did not suffice to uphold mandatory insurance, the even broader power of Congress to impose taxes would surely do so. After all, the individual mandate is enforced through taxation, even if supporters have been reluctant to point that out.

Given the clear case for the law’s constitutionality, it’s distressing that many assume its fate will be decided by a partisan, closely divided Supreme Court. Justice Antonin Scalia, whom some count as a certain vote against the law, upheld in 2005 Congress’s power to punish those growing marijuana for their own medical use; a ban on homegrown marijuana, he reasoned, might be deemed “necessary and proper” to effectively enforce broader federal regulation of nationwide drug markets. To imagine Justice Scalia would abandon that fundamental understanding of the Constitution’s necessary and proper clause because he was appointed by a Republican president is to insult both his intellect and his integrity.

Justice Anthony Kennedy, whom many unfairly caricature as the “swing vote,” deserves better as well. Yes, his opinion in the 5-4 decision invalidating the federal ban on possession of guns near schools is frequently cited by opponents of the health care law. But that decision in 1995 drew a bright line between commercial choices, all of which Congress has presumptive power to regulate, and conduct like gun possession that is not in itself “commercial” or “economic,” however likely it might be to set off a cascade of economic effects. The decision about how to pay for health care is a quintessentially commercial choice in itself, not merely a decision that might have economic consequences.

Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice John Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law. Those judges made the confused assertion that what is at stake here is a matter of personal liberty — the right not to purchase what one wishes not to purchase — rather than the reach of national legislative power in a world where no man is an island.

It would be asking a lot to expect conservative jurists to smuggle into the commerce clause an unenumerated federal “right” to opt out of the social contract. If Justice Clarence Thomas can be counted a nearly sure vote against the health care law, the only reason is that he alone has publicly and repeatedly stressed his principled disagreement with the whole line of post-1937 cases that interpret Congress’s commerce power broadly.

There is every reason to believe that a strong, nonpartisan majority of justices will do their constitutional duty, set aside how they might have voted had they been members of Congress and treat this constitutional challenge for what it is — a political objection in legal garb.

By: Laurence H. Tribe, Op-Ed Contributor, New York Times: Professor, Harvard Law School and author of “The Invisible Constitution”, February 7, 2011


February 8, 2011 Posted by | Affordable Care Act, Constitution, Health Reform | , , , , , , , , , , , , | Leave a comment

Narrowly Dodged Bullets: John Roberts’s Dissenting Opinions

Activism at it's best...and you're worried about Elena Kagan?

Chief Justice John Roberts once again presided over a banner Supreme Court term for wealthy corporate interests. In the term ending today, a 5-4 Roberts Court unleashed a flood of corporate money into American democracy in Citizens United v. FEC. And the same five conservative justices strengthened corporate America’s power to force consumers and workers into a secretive, privatized court system that overwhelming favors corporations in Rent-a-Center v. Jackson.

Yet Roberts’s 5-4 giveaways to corporate America only tell half the story. Indeed, Roberts has authored or joined numerous radical dissents that would give powerful corporate interests sweeping immunity from the law. This stands in stark contrast to his confirmation hearing promise to display “humility” and accept his own “modest role” as a justice.

  • Immunity for drug companies: A dangerous drug was injected into the arm of a woman named Diana Levine in 2000, eventually costing her half her right arm and her career as a professional musician. A Vermont jury ordered the drug’s manufacturer to compensate Levine, but Roberts joined a dissent in Wyeth v. Levine that would have held drug companies largely immune from state law. Had this dissent prevailed, states would be powerless to protect women like Levine from drug defects or defective drug labels discovered after the Food and Drug Administration approves a drug for use.
  • Protecting rogue banks: Roberts joined a dissent in a similar case, Cuomo v. Clearinghouse, arguing that federal regulators properly gave the banking industry broad immunity from state law—despite no legal basis for doing so. Had Roberts’s views carried just one more vote, state fair-lending laws and many other consumer banking protections would have effectively ceased to exist.
  • Justice for sale: After A.T. Massey Coal Company—the same company whose negligent safety record led to the death of 29 miners in a recent explosion—lost a $50 million verdict, its CEO paid $3 million to elect a sympathetic justice to a state supreme court. This justice then cast the deciding vote overturning the verdict against Massey—a 1,667 percent return on the CEO’s investment. Roberts’s dissent in Caperton v. Massey said this bought-and-paid-for judge was under no obligation to recuse himself from Massey’s case.
  • Deceptive marketing: Finally, Roberts voted to cut off deceptive advertising claims in Altria v. Good. In his eyes the tobacco industry should have extensive immunity from state laws preventing fraudulent marketing.

Roberts rarely finds himself in dissent since he leads a bloc of conservatives committed to protecting corporate interests. Nevertheless, his few dissenting opinions in corporate immunity cases reveal a willingness to aggrandize corporate power even more so than he already has in cases like Citizens United or Rent-a-Center.

Such zealous advocacy would be entirely appropriate were Roberts still an attorney for corporate interests. He gave up that role, however, when he became a judge. It’s time for him to live up to his promise to be modest and humble in his decision making.

By Ian Millhiser | June 28, 2010-Center For American Progress; Photo-SOURCE: AP/Nick Ut

June 28, 2010 Posted by | Supreme Court | , , , , , , , , , | Leave a comment


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