WASHINGTON -- Supreme Court Justice Ruth Bader Ginsburg reflected on a polarizing term that featured major decisions on marriage equality, health care and housing discrimination on Wednesday evening in a conversation with Duke Law professor Neil Siegel.
Though the court’s term, which wrapped up exactly one month ago, has been widely described as a liberal one, she said she wouldn’t characterize the term (or herself) as “liberal.” To Ginsburg, consecutive terms that produce record dissatisfaction with the court have become par for the course, because she and her fellow justices tend to take up cases that have divided those below them.
“Every year I keep waiting for the year when we will be out of the headlines, but it hasn’t happened yet,” she told Siegel before a standing-room-only crowd of Duke Law alumni and summer students. “It’s hard not to have a big year at the Supreme Court.”
Obergefell v. Hodges
Ginsburg said she would have spent more pages explaining an equal protection rationale for legalizing marriage equality nationwide if she had written a concurring ruling separate from that of Justice Anthony Kennedy. To explain why she didn't, she said that multiple dissents -- there were four in the marriage equality case from conservative justices -- were "bound to spread confusion," noting that she keeps a book of Justice Louis Brandeis' unreleased dissents in her chambers to remind herself of the virtue of restraint.
Perhaps because in this case it was more powerful to have the same, single opinion. ... That kind of discipline is to say, "I’m not the queen and if the majority is close enough to what I think ... then I don’t have to have it exactly as I would have written it." ... On the whole, we think of our consumers -- other judges, lawyers, the public. The law that the Supreme Court establishes is the law that they must live by, so all things considered, it’s better to have it clearer than confusing.
King v. Burwell
Ginsburg said she was “not surprised” four justices voted to hear the controversial case that could have gutted President Barack Obama’s Affordable Care Act by taking away federal subsidies from those states that did not set up their own insurance exchanges. Chief Justice John Roberts and Kennedy joined the court’s four more liberal justices to uphold the subsidies, enraging conservatives who hoped they’d be convinced by a literal reading of the law that would only distribute subsidies to states that set up their own exchanges. The justice joked that it was a question of “literal vs. what I call sensible interpretation.”
If you read the chief justice’s opinion, I think you would agree with me that no, there’s no sensible way of reading the statute other than the way, there’s no other way it made sense at all. … In the health care case, Congress obviously wanted people to be able to have health insurance in the way that people who sign up for federal exchanges. There’s no point in having a federal exchange other than for them to work with subsidies.
Arizona State Legislature v. Arizona Independent Redistricting Commission
The Supreme Court upheld Arizona's voter-approved independent redistricting commission by a vote of 5-4, with the conservative wing of the court in the minority. The case, as Ginsburg noted, centered on a debate over the Constitution's elections clause and the meaning of the phrasing that the "times, places, and manner" of federal elections "shall be prescribed in each state by the legislature thereof." Republican legislators had argued that the state’s voters couldn’t completely cut them out of the congressional redistricting process through the 2000 ballot initiative that established the commission.
The words in the Arizona case were "the legislature thereof." What were the Founding Fathers thinking about? They were thinking about who had a legislative function. There was no such thing in those days as the initiative or referendum, those developed later, but those are lawmaking functions, so I think it was entirely reasonable to read the Constitution to accommodate whatever means of lawmaking the state had adopted, rather than say, "No, the only way you could make law that counts for this purpose is by the legislature thereof." We can’t know for sure because we have no way of convening with the Founding Fathers, but I think if they knew of the existence of the people’s vote through the initiative or referenda, they would have said, "That’s lawmaking." What we had in mind is who makes the law for the state. Otherwise you’d freeze things as they existed, it would allow no room for affirmative development, no room for the voice of the people, which is what the initiative did.
Glossip v. Gross
Ginsburg joined Justice Stephen Breyer in a dissenting opinion to the court’s decision to uphold the use of a controversial lethal injection drug in Oklahoma. In their dissent, the two justices went beyond the issue of the controversial lethal injection drug and questioned whether the death penalty itself is constitutional. When asked why she had waited until now to do so, she explained that past justices, like William Brennan and Thurgood Marshall, “took themselves out of the running” when they took the position that the death penalty was unconstitutional, leaving “no room for them to be persuasive with the other justices.” But Ginsburg said she and Breyer weren’t “held back” in this case.
I think that [Breyer] pointed to evidence that has grown in quantity and in quality. He started out by pointing out that there were a hundred people who had been totally exonerated of the capital crime with which they were charged ... so one thing is the mistakes that are possible in this system. The other is the quality of representation. Another is ... yes there was racial disparity but even more geographical disparity. Most states in the union where the death penalty is theoretically on the books don’t have executions. So last year, I think 43 of the states of the United States had no executions, only seven did, and the executions that took place tended to be concentrates in certain counties in certain states. So the idea that luck of the draw, if you happened to commit a crime in one county in Louisiana, the chances that you would get the death penalty are very high. On the other hand, if you commit the same deed in Minnesota, the chances that you would get the death penalty are almost nil. So that was another one of the considerations that had become clear as the years went on.