Despite a U.S. Supreme Court term she called “more divisive than usual,” Justice Ruth Bader Ginsburg this week said the “returns aren’t in” yet on whether the public should view the high court as a more polarized, partisan institution.
“This was one term. It did have more than the usual high-profile cases,” Ginsburg told an audience at an event hosted by Duke University School of Law. Professor Neil Siegel, a former Ginsburg clerk, led the event, held at the Washington office of Jones Day. Duke Law posted the video Friday.
The justice reminded the audience that Chief Justice William Rehnquist, when he was an associate justice, dissented from every case in which she prevailed, but one. Years later, as chief justice, he upheld the constitutionality of the landmark Miranda decision despite having criticized its constitutionality for years.
“As long as one lives, one can learn,” Ginsburg said. When Siegel followed up by asking if she held out hope that in another decade or so, justices might have different views, she answered, “At least one or two.”
Here are some other takeaways from her appearance:
➤➤ A “considerably higher” disagreement rate this term.
Of the court’s 59 signed opinions, she said 20 were 5-4 or 5-3. The court had a 43 percent “sharp disagreement rate,” for all decisions, which Ginsburg described as “considerably higher” than prior terms. In 2016, the rate was only 15 percent. “I hope next term we would get back to our usual 15 percent soft division rate other than 40 percent,” she said.
➤➤ Breyer wins the prize for most words spoken.
Justice Stephen Breyer spoke the most words during oral arguments—22 percent of all words during the term, Ginsburg said. Justice Sonia Sotomayor came in second at 17 percent; Justice Anthony Kennedy trailed at 5 percent, and Justice Clarence Thomas asked no questions “because he thinks we ask too many,” Ginsburg said. Justice Samuel Alito asked the most questions in any argument—44 in Minnesota Voters Alliance v. Mansky, a First Amendment election law challenge. Alito raised one hypothetical after another at the argument. Justice Elena Kagan asked the longest questions, averaging 93 words per question.
➤➤ The court’s best and worst rulings last term?
“I think the Carpenter case” was the best decision, said Ginsburg, referring to Carpenter v. United States. The 6-3 majority said law enforcement must get a warrant to access cellphone location data. “It doesn’t say law enforcement can’t get such location information,” she said. “It just says they have to go before a magistrate and show probable cause.”
And the worst decision in which she dissented? “I wrote the dissent in the Epic case,” said Ginsburg. “I think that [decision] was quite contrary to the National Labor Relations Act.” In Epic Systems v. Lewis, the 5-4 majority said workplace arbitration agreements barring class actions must be enforced under the Federal Arbitration Act. Earlier in the discussion, Ginsburg had said, “There’s something different about worker-related problems and arbitration, and that difference is the National Labor Relations Act.”
➤➤ What’s changed at the court over Ginsburg’s 25 years?
“One thing that isn’t different is the collegiality of the court,” she said. “Of course, I miss my favorite sparring partner—Justice Scalia. You don’t see that kind of friendship existing in our Congress anymore. I hope it will again.”
➤➤ Needs more moot court, please.
Ginsburg, in response to a question about promoting public understanding of the court, suggested one way is to have moot courts in schools. “Take a current case, simplify it and have students argue both sides,” she said. “You can’t be an effective dissenter unless you understand the other side’s argument. If I could choose who would write the dissent to a majority opinion assigned to me, it would always be Justice Scalia. He always pointed to the weakest points and then I had the opportunity to strengthen it.”
➤➤ Three familiar faces at one oral argument.
Ginsburg made two remarks about advocates who appeared this term. Rod Rosenstein, the embattled deputy U.S. attorney general, made his debut argument at the high court, advocating in defense of a criminal sentence. “Deputy AG Rosenstein can now claim a perfect 1-0 winning streak in cases argued before the court,” Ginsburg noted. Ginsburg also noted the simultaneous appearance of three of her former clerks—Elizabeth Prelogar, Kelsi Corkran and Toby Heytens—arguing positions in the case City of Hays v. Vogt. “I was treated to a superb argument by especially familiar faces,” Ginsburg said.
➤➤ “I have five more years to go.”
“Justice [John Paul] Stevens stepped down when he was 90,” she said. “If I aspire to that same tenure, I have five more years to go.” And on how she wants to be remembered? “As someone who did the best she could with whatever talent she had to make things a little better for people less fortunate, to move society and law in a democratic path.”