GINSBURG: What’s amazing is how things have changed on court. (AP / Charles Dharapak)
The turmoil in Ferguson, Mo., and the controversial stop-and-frisk policy in New York City illustrate a “real racial problem” in America, one that recent U.S. Supreme Court decisions have done little to help, Justice Ruth Bader Ginsburg told The National Law Journal.
The high court was “once a leader in the world” in rooting out racial discrimination,” the justice said in a wide-ranging interview late Wednesday in her chambers. “What’s amazing is how things have changed.”
Ginsburg recalled the Burger Court’s unanimous landmark ruling in 1971 in which the justices, led by Chief Justice Warren Burger, a Nixon appointee, embraced the powerful legal tool known as the “disparate impact” framework for uncovering discriminatory policies that are neutral on their face but disproportionately harm minorities.
In that ruling (Griggs v. Duke Power), Burger spoke of “built-in head winds” for minorities, she said. There was then a sensitivity that the requirement of a high school diploma for a janitor’s job, for example, would inevitably screen out black applicants.
“It was a very influential decision and it was picked up in England,” Ginsburg recalled. “That’s where the court was heading in the ’70s.”
Some of the Roberts Court’s conservatives, as well as conservative organizations, have challenged the continued use of the disparate-impact theory, which many credit for playing a major role in transforming the workplace for women and minorities.
The court’s more recent rulings restricting affirmative action and voting rights, she added, have not “helped” the country deal with its racial problems. The Voting Rights Act, in particular, has been the most important law “in terms of making people count in a democracy,” Ginsburg said. She repeated her disagreement with the 5-4 majority’s decision last year in Shelby County, Ala. v. Holder that struck down a key section of the law, which had been renewed by overwhelming majorities in both chambers of Congress in 2006.
Chief Justice John Roberts Jr., who wrote that decision, concluded that 50 years after the act was first passed, “things have changed dramatically” in America.
The 81-year-old Ginsburg, appointed to the high court by President Bill Clinton in 1993, contrasted the pace of public acceptance of black Americans with that of gays and lesbians, focusing on differences in familiarity.
“Once [gay] people began to say who they were, you found that it was your next-door neighbor or it could be your child, and we found people we admired,” she said. “That understanding still doesn’t exist with race; you still have separation of neighborhoods, where the races are not mixed. It’s the familiarity with people who are gay that still doesn’t exist for race and will remain that way for a long time as long as where we live remains divided.”
In the interview, Ginsburg also discussed why women should worry about the implications of the high court’s ruling in Burwell v. Hobby Lobby. The decision held that the government’s requirement of contraceptive insurance coverage in employer health plans violated the Religious Freedom Restoration Act as applied to closely held corporations.
She also spoke of her decisions to assign the writing of dissents in last term’s Michigan affirmative-action ban case and the government-prayer case to justices Sonia Sotomayor and Elena Kagan, respectively; the public’s lower opinion of the high court; whether the decision striking down the definition of marriage in the federal Defense of Marriage Act sent conflicting signals to same-sex marriage litigants; two-year versus three-year law school; and the Roberts Court’s “biggest mistake.”
Highlights of the interview, edited for space and clarity, follow:
NLJ: You have said that you and your colleagues are most concerned that the Supreme Court not be viewed as a political institution. Recent polls show declining regard for the high court and strong feelings that the justices apply their political beliefs, not the law, to the cases before them. What do you think is behind those reactions?
GINSBURG: I think it’s the spillover effect from the dismay about our dysfunctional Congress. Whatever the polls say about the court, we stand much, much higher than either of the other two branches. I think people are disillusioned with our government’s inability to work and that spills over to the court because we are part of the government.
One of the problems is that redistricting has led to safe seats for one party or the other. Still I think the biggest mistake this court made is in campaign finance, which Justice [Sandra Day] O’Connor could have saved us from. She left. Justices O’Connor, [John Paul] Stevens and [David] Souter (who supported campaign finance regulations) were Republican voters from the time they could vote and came from families that were always Republican. It should be increasingly clear how [money] is corrupting our system, and it is spreading in states that elect their judges.
NLJ: In the Hobby Lobby decision, which was written by Justice Samuel Alito Jr., he analyzed whether, under the Religious Freedom Restoration Act, the government had a compelling interest in the contraceptive requirement and had used the least restrictive means to achieve it. But instead of finding or not finding a compelling interest, he simply said he would “assume” the government had such an interest. Should women take comfort in that assumption?
GINSBURG: They should not. They should be very worried about it because he should have said, “Of course there is a compelling interest in making sure women have access to birth control.” They should be very worried about that.
To me, Hobby Lobby was a very simple case, an easy [one]. The image I used that I borrowed: “Your right to swing your arms ends just where the other man’s nose begins.” I fully respect the beliefs of the Greens [who own Hobby Lobby] and those who own Conestoga Wood, but they had hundreds of people working for them who don’t share their views. Somebody who does share their views is not going to want access. Well, we’ll see how far it goes.
NLJ: You have called the decision striking down the abortion-clinic buffer-zone law in Massachusetts a “good decision,” which you joined. Why did you join the chief justice’s opinion?
GINSBURG: It made a very important case that protests before abortion clinics, that regulation of those protests are content-neutral. That was the most important thing to me about the chief’s decision. The problem didn’t exist for hospitals, in general. The problem existed for one kind of place, and the legislation was aimed at ensuring access. Where Massachusetts went wrong was it went much further than necessary.
My initial view was this is permissible legislation but if you looked at the record, it was so sparse. I think at four of the clinics they had no evidence of any kind of disturbance. Then the video that they showed compared to the demonstrations that have occurred elsewhere, these were rather mild. It wasn’t necessary to have that 35-foot zone. And I think Massachusetts has gone back and changed it.
NLJ: The buffer-zone decision was unanimous in the judgment, but not in the opinion. Justice Antonin Scalia wrote a concurrence that was more of a dissent and he accused the court of “specious unanimity.” That case and the decision in the recess appointments clause challenge—also unanimous in the bottom-line judgment, but not in the opinion—gave rise to claims of “fauxnanimity.” Were they “specious” unanimous decisions?
GINSBURG: If the notion was the court was trying to appear unanimous when it wasn’t, that is not true. In Noel Canning [the recess-appointments case], the court could not have disagreed more sharply on what is a recess that counts and could a vacancy occur before a recess. But when dealing with rules that Congress sets for the way it operates, the court has always been deferent to that. So I wouldn’t use the word ‘specious.’
I think some of the reports about Noel Canning, some of the headlines—’Court rejects Obama’s nominees—they missed what was really important about Noel Canning. The administration prevailed on the first two questions. It reminded me of when [news reports] decided Souter and Breyer were with the court in Bush v. Gore.
NLJ: When the 5-4 majority in United States v. Windsor struck down the marriage definition in the Defense of Marriage Act, Justice [Anthony] Kennedy’s opinion had two major strands in it: federalism and equal protection. Both sides in the same-sex marriage debate and litigation are relying on Windsor: opponents using federalism; supporters using equal protection. Did the court send conflicting signals in that decision?
GINSBURG: In the federalism theme, marriage and family law have traditionally been the states’ domain and that goes one way. But then there is this eloquent statement about liberty and freedom to be what you are. The predecessor cases, also written by Justice Anthony Kennedy, those were not federalism cases, starting with Romer v. Colorado and then Lawrence v. Texas. I guess if you put those three together you say the main theme is the right to be treated with equal dignity.
NLJ: As the senior justice in dissent, you assigned to Justice Sotomayor the dissent in the court’s decision upholding Michigan’s constitutional amendment prohibiting the consideration of race in higher education. You and she were the only dissenters. She had joined the 7-1 decision two terms ago in the University of Texas case where race was considered as a factor in the admissions policy. The court sent that case back to the lower court to apply a stricter type of strict scrutiny. Why did you assign the Michigan dissent to Justice Sotomayor?
GINSBURG: She cared deeply about the issue. She might have been distressed about some of the reports in the Fisher [v. University of Texas] case where she went along with the court. So if anybody had doubts about her views on affirmative action she wanted to quell them, which she certainly did.
It was an agreement between the two of us that she would write.
NLJ: In his solo concurrence in the Michigan case, Chief Justice Roberts seemed to be irked by her dissent which, he wrote, appeared to question the motives of those who disagreed with her. Did she cross a line here?
GINSBURG: It was a passionate dissent. It was more frustration that a majority didn’t see it the way she did. It was a 6-2 decision and, I thought, not a very good distinction of the two decisions (precedents) which Sotomayor said, and the majority denied, had found the [political] system changed to benefit majorities.
NLJ: A day after the Hobby Lobby decision, the court, with three dissents, issued an injunction against the application of the contraceptive insurance requirement to Wheaton College, a religious institution. Wheaton had objected to getting an exemption via a self-certifying letter stating its objections to the coverage. You assigned the Wheaton dissent to Justice Sotomayor as well and she wrote a blistering opinion.
GINSBURG: That may have been the same thing. She granted the stay in Little Sisters of the Poor [raising similar objections to the letter] because she was the Tenth Circuit justice. I think it was another case where she wanted to make clear what her view was. Besides, there was enough in my dissent in Hobby Lobby. I had said everything I wanted to say on that subject so it was appropriate for somebody else.
NLJ: Justice Elena Kagan has written dissents in religion-related cases per your assignment. Her most recent one was in the government prayer case, Town of Greece v. Galloway. Why have you turned to her?
GINSBURG: What she is saying in Town of Greece is nobody should be an outsider. She has been in that position much more so than Justice [Stephen] Breyer. She was an outsider even in her own religion in that she had to fight to be an insider. She had to fight to be the first girl bat mitzvahed in her Orthodox synagogue. She was insistent. She was not bat mitzvahed on a Saturday morning as the boys did; they made it a Friday night service.
I think she has that sensitivity. It’s something that my colleagues don’t really get because they haven’t been in that situation.
NLJ: Towards the end of their tenure on the court, justices Harry Blackmun and John Paul Stevens, and even later than that, Justice Lewis Powell Jr., decided they could no longer support the constitutionality of the death penalty. As we see increased problems with lethal injection, what are your thoughts now about the penalty?
GINSBURG: I’ve always made the distinction that if I were in the legislature, there’d be no death penalty. If I had been on the court for Furman [v. Georgia, 1972, invalidating the death penalty], I wouldn’t have given us the death penalty back four years later. Stevens and Powell were part of that. I think there wouldn’t have been a big fuss. There was a big fuss initially over the decision that stopped executions. If the court had stayed there, it would have been accepted. That was the golden opportunity. I had to make the decision was I going to be like Brennan and Marshall who took themselves out of the loop [by dissenting in every case upholding the penalty]. There have been some good death penalty decisions. If I took myself out, I couldn’t be any kind of contributor to those.
NLJ: After more than two decades on the court, what types of cases still vex or challenge you?
GINSBURG: Death penalty. For one thing, our jurisprudence is dense and then we have these contributions from Congress like AEDPA [Antiterrorism and Effective Death Penalty Act]. Because we had no death penalty in the District of Columbia, my first year here, I asked my clerks to write a memo so I could become familiar with where the court was on the death penalty. It was dense then and it has gotten only worse.
NLJ: The chief justice will begin his 10th term in October. Has he changed in any way over the years here?
GINSBURG: He was always good at running our conferences. He is a little more relaxed than the old chief. He is a great representative of the court because he can give the best two-minute speech. I love it when he gives the closing remarks at the court’s musicale because I wonder what is he going to come up with and it is always something terrific. And of course, he did distance himself from the court in the health care decision. He knew he was going to take a lot of criticism from his home crowd for that and I think the same thing for the Massachusetts abortion-clinic case.
He is very smart and he writes well-written opinions.
NLJ: Do you regret or worry about prior decisions you have made?
GINSBURG: I don’t think about decisions that I have made and can’t do anything about anymore. That’s what Ed Tamm told me when I was a new judge on the circuit. When you write for the court, you work very hard and you do the best you can, but then when the opinion is released, don’t look back; don’t worry about things that are done; go on to the next case, and give it your all.
Marty [her late husband and noted tax lawyer Martin Ginsburg] used to say the true symbol of the United States is not the bald eagle; it’s the pendulum.
NLJ: There has been a recent debate about the length and cost of law school. Justice [Antonin] Scalia said law school should remain three years in length. President [Barack] Obama suggested two years. You are a former law professor and continue to have close contacts with law schools: What are your thoughts on this issue?
GINSBURG: I have a daughter who has been teaching [law] at Columbia for 25 years—I couldn’t believe it. I think a lot more is being done with the third year. One of the things that should be done is to require every student to have how many hours of public service. If you just needed the skills to pass the bar, two years would be enough. But if you think of law as a learned profession, then a third year is an opportunity for, on the one hand, public service and practice experience, but on the other, also to take courses that round out the law that you didn’t have time to do.
Two years—it does reduce the respect, the notion that law is a learned profession. You should know a little about legal history, you should know about jurisprudence. [Two years] makes it more of a craft like the training you need to be a good plumber.
NLJ: Have you considered writing a book as three of your colleagues have done?
RBG: Never. There are two people—Wendy Williams and Mary Hartnett—who are writing a book about me and it will be very good. I don’t care if I ever see it or how long it takes. There is another book being written without my authorization and a book about me and Justice O’Connor but Justice O’Connor was not interested. Then there is a professor who decided to do a book and asked various people who know me to write a chapter. That’s more than enough, and then there is the Tumblr, the Notorious R.B.G.