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Justice Ginsburg and Legislative Independence:
Justice Ginsburg recently gave an address on the role of dissenting opinions that included a remarkable explanation for her dissent last Term in Ledbetter v. Goodyear Tire & Rubber. Ledbetter involved a statute regulating when discrimination claims must be filed; the Court ruled 5-4 that the lawsuit in that case was filed too late. Justice Ginsburg dissented, and she took the unusual step of reading her dissent from the bench.

  In her address, Justice Ginsburg explains that the purpose of her dissent was "to attract immediate public attention and to propel legislative change." She then explains how the other branches responded:
Several members of Congress responded within days after the Court's decision issued. A corrective measure passed the House on July 31, 2007. Senator Kennedy introduced a parallel bill, with 21 co-sponsors. The response was just what I contemplated when I wrote: "The ball is in Congress' court . . . . to correct [the Supreme] Court's parsimonious reading of Title VII." But the fate of the proposed legislation has been clouded. On July 27, the Administration announced that if the measure "were presented to the President, his senior advisors would recommend that he veto the bill."
  If I understand Justice Ginsburg correctly, she wrote a legal opinion at least in significant part to push a different branch of government to enact a law closer to her personal policy preferences. If I am reading her speech correctly, she appears to be pleased that Congress is following up on her efforts. She's watching the House and Senate, and the passage of a bill in the House and introduction in the Senate is just what she had in mind when she wrote her dissent and read it from the bench. But then she seems less-than-pleased that President Bush has "clouded" the prospects of the bill's passage by threatening a veto.

  I find this explanation troubling. It seems to me that a Justice's job in a statutory case is to say what the statute means and no more. If you dissent, then dissent. But trying to push Congress to enact a law that you like better isn't part of the job description.

  To be clear, it's not newsworthy that Supreme Court Justices have and are influenced by their personal policy preferences. That much is human nature. But Justice Ginsburg is not saying that her own views may color her view of what the law is. Nor is she simply acknowledging her personal view that it would be good for Congress to amend the law in a particular way (a position I tentatively share). Rather, she seems to believe that she has a legitimate interest in her capacity as a Supreme Court Justice to push co-equal branches of government to enact a new law that will be more to her personal liking.

  This view seems hard to square with Justice Ginsburg's frequent invocations of "judicial independence," the notion that legislators should leave the judging to the judges. Justice Ginsburg has frequently criticized legislators — particularly conservatives — who have tried to influence the federal courts by regulating its jurisdiction or closely scrutinizing appointees on political grounds. According to Justice Ginsburg, these efforts threaten the constitutional order because they involve legislative overreaching into the sphere of the judiciary. See generally Ruth Bader Ginsburg, Judicial Independence: The Situation of the U.S. Federal Judiciary, 85 Neb. L. Rev. 1, 7-13 (2006).

  But shouldn't this be a two-way street? If it is improper for legislators to try to influence the outcomes of future cases, why is it perfectly okay for her as a Supreme Court Justice to try to influence the outcomes of future legislation? I don't mean to be too harsh, but I do find her position quite puzzling. Some might argue that her view of her role really isn't surprising, and that we should expect Justice Ginsburg to try to influence Congress this way. But if that's true, doesn't it mean Justice Ginsburg's argument for judicial independence falls flat and that legislators are justified in trying to influence the decisions of the Court? I don't see how you can have it both ways.
Kazinski:
It is obvious what the difference is between Congress trying to influence the courts, and Justice Ginsberg trying to influence Congress: Congress may try to influence the courts in the wrong direction, Ginsberg's influence will unerringly be in the right direction.
10.25.2007 1:33am
George Weiss (mail):
i think there is a diffrence between

1. you think the statue means X...unfortunatly..you get voted out and instead it means Y. you want congress to quickly and efficeiantly know that their will has been frustrated by the courts..and notify them by a dissent that they should act.

2. you belive the statue means X and the court rules it means X. You, as a supreme court justice go on the record in dicta to say that you disagree with the law as a matter of policy even though thats what congress has decided.

ginsiburg is doing #1 here.
10.25.2007 1:38am
OrinKerr:
George, I really like your explanation. But isn't there an important difference between a) notifying Congress of the decision in case they missed it (your characterization of Ginsburg's goals) and b) trying "to propel legislative change" (Justice Ginsburg's own characterization of her goals)?
10.25.2007 1:44am
Perseus (mail):
It's also human nature to want to have your cake and eat it too.

I would add that the Constitution specifically empowers the president to recommend legislation, but not the judiciary (presumably to promote judicial independence and nonpartisanship), which suggests to me that the members of the judiciary should not attempt to initiate legislative change in this manner.
10.25.2007 1:45am
Bill Poser (mail) (www):
Two points. First, it isn't clear to me in this case that Justice Ginsburg is merely trying to get Congress to change the law to follow her preference. After all, her dissenting opinion indicates that she thinks that the majority interpreted the law incorrectly. So I think that it is likely that she is expressing her pleasure with Congress attempting to clarify the law so that there will be no question that it means what she thinks it means and that she is displeased that Bush may interfere with this.

Second, even if she is trying to influence Congress, I don't think that she is out of line. The legislature and the judiciary have different roles. The judiciary is supposed to decide cases only on the basis of the law and the facts. It is not supposed to permit external influences. The legislature, on the other hand, is explicitly political and is supposed to be influenced by the views of the voters and even of people in other countries. Attempts by the legislature to influence the courts are therefore inappropriate because nobody is supposed to exert such influence on the courts, but efforts by the judiciary to influence the legislature are acceptable insofar as they fall within the bounds of the sort of influence that anyone may exert on the legislature.

If the Supreme Court were to use its power as a court to twist the arm of Congress (imagine the Court telling a Congress controlled by social conservatives "We won't overturn Roe v. Wade unless you eliminate the budget deficit"), that would raise problems with separation of powers, but what Justice Ginsburg has done is to speak as an individual, albeit one who is unusually knowledgable and has a bully pulpit.
10.25.2007 1:46am
OrinKerr:
Bill Poser writes:
The legislature and the judiciary have different roles. The judiciary is supposed to decide cases only on the basis of the law and the facts. It is not supposed to permit external influences. The legislature, on the other hand, is explicitly political and is supposed to be influenced by the views of the voters and even of people in other countries. Attempts by the legislature to influence the courts are therefore inappropriate because nobody is supposed to exert such influence on the courts, but efforts by the judiciary to influence the legislature are acceptable insofar as they fall within the bounds of the sort of influence that anyone may exert on the legislature.
Bill, under your theory shouldn't it be the other way around? Your view seems to be that judges should act like the legislators they aren't but that legislators shouldn't act like the legislators they are. Or am I misunderstanding you?
10.25.2007 1:51am
George Weiss (mail):
orin.

yes..the words "propelling legislative change" makes it sound a lot more like shes doign number 1.

but here dcdecsion itseldf makes it sound a lot more like number 2.

also i think the fact that its a dissent about what the statue menas..not a concurrence with a inappropriate political comment attached.

essentially my reply to your response is to just downplay the language of "promote legilative change" and look at the circumstances themselvs
10.25.2007 1:57am
Christopher M (mail):
It seems to me that a Justice's job in a statutory case is to say what the statute means and no more.

Really? I disagree. The judiciary is on the front lines of applying the law, and if judges think a certain law (or judicial holding) is working out badly in practice, I certainly think they should say so. (Of course, it's up to Congress whether or not to do anything about it -- it's not like Justice Ginsburg is trying to wield her power as a Justice to get Congress to change the law.)
10.25.2007 1:59am
Charitable Fellow (mail):
Orin, I think George has it right here, and that you're over-reading what Justice Ginsburg said. Here is what I take her to be saying. Justice Ginsburg thought the majority read the statute incorrectly, in a way that, maybe even perniciously, narrowed civil rights unduly. She consequently wished to see the statute restored to its correct meaning by alerting Congress to what had happened. That Congress heeded her cry is gratifying to her -- for it means that the erroneous, even pernicious, thing that the Court had done may not last long. But the President, with his veto threat, is frustrating the effort to give effect to what Congress had originally intended when it wrote the law and is abetting the Court in its scheme to narrow the statute through interpretation. As a result, the Justice's (intentionally) stingy reading of the statute has unfortunately worked.

I think you're right, Orin, that there is something troubling if Justice Ginsburg meant to say what you read her as having said. But I wouldn't give too much empahsis to the words "propel legislative change." Given that it was a speech, that she speaks a lot, and that her words were necessarily not as carefully chosen as they would have been in a more formal statement, I think charity in interpretation is in order. With all respect then, I would strongly prefer to put her words in their best, and most judicious, light. I just can't imagine that she'd intentionally and nakedly advocate a policy view in a speech.

For what it's worth.
10.25.2007 2:00am
Bama 1L:
Okay, so what do you think of Scalia's dissent in the Traci Lords case, X-Citement Video v. United States, 513 U.S. 64 (1994)? Scalia wanted to find a child pornography law unconstitutional and have Congress rewrite it. Unfortunately, the majority (Rehnquist, C.J.) went ahead and rewrote it, in terms Scalia thought rendered it "toothless."

What do you think of various and sundry affirmations of criminal convictions that boil down to "our hands are tied by this dumb law, which the legislature really should fix"?

Should appellate opinions even mention the fact that legislatures exist and could change laws, or is that undue encroachment on legislative independence?
10.25.2007 2:00am
Sean M:
I disagree with Orin as well. Justice Ginsburg is in the dissent. Dissents clearly have more latitude with what they say because they are arguing to a different audience: commentators that might read the case, future courts that might overturn it, legislatures. But suppose she was with the majority and said:

"I think the statute must be read this way. However unfair this may be to women (and we agree it is unfair), it is left to Congress to correct the issue."

We see these sorts of decisions at times. Judges who will follow "the law" yet exhort Congress to change the law. We see this as the "correct" way to do it. If anything, this was less objectionable. She wasn't in the majority. She was in the dissent.
10.25.2007 2:07am
George Weiss (mail):
bama and others bring out a good point as well in that obviously laws are on the books that dont playo ut well in practice and the ocurtrs are in a uniqe place to tell them (hey this 1900 statue penalizing fornication is dumb) etc..
10.25.2007 2:07am
jim:
I don't particularly see the problem with a Justice expressing policy preferences by urging Congress to act from the bench. At a bare minimum it is better than expressing policy preferences by reading them into places they don't exist.

Besides, might not judges, as the people who populate the forum where unexpected applications of laws may present themselves, have insight about laws that legislatures might not. I would certainly think it would be appropriate for Ginsburg, acting as a mere citizen, to address the legislature (maybe you disagree with this). I am not sure how doing so from the bench is bad if done in the correct way.

Finally, imagine the reverse. Would we criticize a member of Congress, or Congress as a whole, for expressing an opinion about the proper interpretation of the Constitution? I don't think we would. When we think about members of Congress unduely influencing the courts it is by recommending specific results-oriented policy decisions be enacted by the court, not, for example, by giving their opinions about the historical context of the second amendment. In other words we think Congressional urgings are inappropriate when they use reasoning that is irrelavent to what the Court is supposed to be deciding.
10.25.2007 2:09am
OrinKerr:
Christopher M,

I think you're missing a key point, though: what makes Ginsburg's comment unusual is not that she expressed her personal preference, but that she took steps to try to "propel legislative change" (in her words).

Charitable Fellow,

That is indeed a charitable interpretation, and I certainly thought about that possibility. But isn't Justice Ginsburg's language actually pretty clear in this case? "propel legislative change . . . The response was just what I contemplated. . . ." etc. Given that this was a speech, not an off hand comment, she seems to be making the point pretty clearly, I fear.

Bama 1L,

I responded to that in the post, I think.
10.25.2007 2:12am
OrinKerr:
Sean M, Bama 1L, etc:

I do hope you'll respond to my last paragraph, in which I wrote:
Some might argue that her view of her role really isn't surprising, and that we should expect Justice Ginsburg to try to influence Congress this way. But if that's true, doesn't it mean Justice Ginsburg's argument for judicial independence falls flat and that legislators are justified in trying to influence the decisions of the Court? I don't see how you can have it both ways.
I thought that was an important part of the argument, and so far I don't think comments have addressed it.
10.25.2007 2:15am
David Schraub (mail) (www):
Yeah, I'm going to register my agreement with George that we have a very different conception of "independence" when it comes to the Judiciary versus Congress. The former is supposed to be free of political influence, while the latter is explicitly supposed to be responsive to arguments and proposals coming from the outside. Especially given the rather mild nature of how Ginsburg tried to influence the legislature here (essentially, just through moral suasion), it'd be tough to discern a true threat to "legislative independence" even if we were to hold such a concept to the same level as "judicial independence." Certainly, Congressman often try to "influence" the court by suggesting — in much more explicit language — how they expect certain laws and constitutional clauses should be interpreted. Unless they take it a step further and try and strip Court's of jurisdiction, impeach wayward justices, or question the legitimacy of the judiciary as a whole, few have a problem with this.

And also, I agree with Christopher M. that the judiciary's role on the "front-lines" of where law meets practice means they have a proper role to play when they see that a given law isn't working properly. Pragmatically speaking, this strikes me as a good check against legislators writing terrible laws that don't effect many people but are still awful in practice, and, more intriguingly, provides an "outlet" for judges who dislike a law but still think it "legitimate" to explain their discontent and thus break the connection that voting to uphold a law means sanctioning the policy (Ginsburg didn't do that here, since she dissented, but a good example would be Judge Birch's majority opinion in Lofton v. Department of Children and Family Services, upholding Florida's anti-gay adoption law while calling the policy "misguided" and expressly hoping for change).
10.25.2007 2:15am
OrinKerr:
One minor aside, if I may: The idea of Supreme Court Justices as being "on the front-lines of where law meets practice" is really quite misleading, I think. It's hard to get more removed from the front-lines of where law meets practice then the rarefied atmosphere of the Supreme Court. Magistrate Judges are on the front lines; Supreme Court Justices are back at headquarters.
10.25.2007 2:22am
GV_:
Orin writes: "But if that's true, doesn't it mean Justice Ginsburg's argument for judicial independence falls flat and that legislators are justified in trying to influence the decisions of the Court? I don't see how you can have it both ways." I don't see why it must be a two-way street. Could you perhaps explain in more depth why you think you can't have it both ways?

And to add to the chorus that it seems that Ginsburg wasn't doing anything wrong (i.e., setting aside the hypocrisy angle), judges now and again recommend commutation of an unjust sentence. Is that wrong too?
10.25.2007 2:22am
George Weiss (mail):
orin-

good pint the "two way street" arugment hasn't been addressed by those who thingk the judiciary is independent and also belive they should be allwed to make politicla rguments in their decsions.

perhapps there is a sliding scale of times when its ok for a judge to make a poltical comment-even one where they admit the law means somthing other than they would like it to say-

in such a case as this where the president and congress are obivously in a hot debate poticially it would be more problematic to make a polticla sttement in the opinion


but if we are tlaking about some old law where itsu nlikely there will be political obstacles to getting the congress to change...(but just a getting them to pay attention to the problem issue)..is that really the same thing...

of course this is a pretty tricky sliding scale type analisis

(assuming again we are just talking about making a policy comment...not just notifying the congress that you think the court has just interpreted a statue agaisnt what you think it means and what you think congress wanted..whcih again we think ginsburg may be doing)
10.25.2007 2:23am
David Sucher (mail) (www):
What's the difference between
1. what Ginsburg did
and
2. what the Court majority did in Kelo when it said, I believe, that its hands were tied to decide in a particular way but that legislatures were free to change the law of condemnation to get a different result?

The latter is even more egregious if one believes that the Court should not interfere with "politics."
10.25.2007 2:27am
JonC:
I think some of the commenters defending Justice Ginsburg here are downplaying the possibility that her comments are undermining the Court. Typically, dissenters register their protests in their opinions (including perfectly acceptable calls for Congress to neutralize the Court's decision via statute), and then, everyone moves on, with no further involvement from the Justices. Some may bitterly oppose the Court's reasoning or the result it reaches, but we all accept, however grudgingly, that the Court's decision stands as the law of the land.

In contrast, here Justice Ginsburg has taken, after the fact, to openly and publicly encouraging Congress to adopt her view of the statute, and criticizing the executive branch for opposing that view. No disrespect to the Justice, but while she is entitled to her view of the law, the Court has spoken, and she was in the minority. Can anyone point to another historical example of a sitting Justice publicly engaging in this sort of post-hoc lobbying? Even if it has taken place, is it really the sort of thing that we should accept or encourage? Would we really want as many as four Justices publicly denouncing the Court's decisions months after they're issued and actively cheering on Congress's efforts to undo them, with all the attendant effects that might have on the Court's standing with the public?
10.25.2007 2:28am
OrinKerr:
GV_,

I think it needs to be a two-way street because there are three co-equal branches of government, each of which has one of the three roles in a system of separated powers. I suppose it's true that are some persons that don't believe in a two-way street among the various branches: I assume Dick Cheney and David Addington do not, for example. But I would have thought this was a minority view. < / heavy artillery>
10.25.2007 2:29am
George Weiss (mail):
jonc-

i think the full exten t of her political activity would be in the dissent....

here address said what the purpose of her idssent was...does that address furthere political goals and contituite post hoc poltical advocy after the fact?
10.25.2007 2:32am
JonC:
George Weiss: I think the Justice's address goes beyond her dissent. In the dissent, she registered her disagreement with the majority and called on Congress to overturn the Court's ruling. Assuming arguendo that there's nothing untoward about that, she has now decided, months later, to give a speech criticizing the executive, a co-equal branch, for "cloud[ing]" the legislation she wants to see enacted. So my answer to your question would be "yes" - I see Justice Ginsburg's actions as attempts to influence a process that should be playing out in the political arena without her involvement.

I am as sympathetic as anyone to arguments that the judiciary has arrogated power to itself at the expense of the other branches, but I also wonder (riffing off of the judicial independence theme that Prof. Kerr mentioned), whether Justice Ginsburg's speech ultimately does judicial independence a disservice by furthering a view of the Court as merely another a policy-making body, to be corrected by Congress whenever it reaches the "wrong" result.
10.25.2007 2:43am
Bruce:
Orin, I don't see any express or implied reference in Ginsburg's speech to her own policy preferences, and I'm curious where you are getting that from. Nothing she says requires your reading. It seems to me that the more likely interpretation is that she sees dissents -- not just her own in Ledbetter -- as a way for judges to point out to legislators that the statute has been interpreted in a manner inconsistent with the legislature's original intent. "Look at what the majority has done to your statute!" such a dissent says. "Clarify it for them immediately!" And such a dissent may "propel legislative change" and provoke just the response the dissenter contemplated.

And in fact that's exactly what Ginsburg says she was doing. "That [interpretation], I urged, could not be what Congress intended when, in Title VII, it outlawed discrimination based on race, color, religion, sex, or national origin in our Nation's workplaces."

And if that doesn't convince you, your reading looks suspect when Ginsburg moves on to describing how Courts of Appeals dissenters can "propel change in the law." "When a judge on a mid-level court writes separately, he or she may persuade other courts at that level, thus creating a conflict among appellate courts in different regions of the country, one that the Supreme Court eventually may resolve." Surely she's not calling on Courts of Appeals judges there to get the Supreme Court to hear cases so that the appeals judges' personal policy preferences are enacted, right?
10.25.2007 2:54am
Kazinski:
Ginsburg had no choice but to use her dissent to try to get Congress to rewrite the law because she couldn't get a majority so she could rewrite it herself. The law was pretty clear in its intent in that case, Ginsburg's dissent was clearly based on the preferred outcome not the law.
10.25.2007 2:58am
Bill Poser (mail) (www):

Bill, under your theory shouldn't it be the other way around? Your view seems to be that judges should act like the legislators they aren't but that legislators shouldn't act like the legislators they are. Or am I misunderstanding you?

Orin,

I'm not sure I understand you. What I meant is that legislators are supposed to be influenced by people's views, which may include those of judges, whereas judges are not supposed to be influenced by anything other than the law and the facts before them and therefore, as a particular case, should not be subject to legislative influence.

In what sense do you think that I am suggesting that judges should act like legislators? In proposing policy? If that is it, I am saying not that judges should act like legislators but that they may act like anyone.
10.25.2007 3:13am
theobromophile (www):

Rather, she seems to believe that she has a legitimate interest in her capacity as a Supreme Court Justice to push co-equal branches of government to enact a new law that will be more to her personal liking.

I would omit the last six words. Now, I'm the first one to say that I'm not a fan of Ginsburg, nor her jurisprudence, and especially not her Ledbetter and Gonzales dissents.

Nonetheless, at least w/r/t Ledbetter, it seemed as if she is trying to push Congress to fix a gap in its laws, of which it was unaware, and which frustrated Congressional intent. I'm not sure how Ginsburg would be co-opting a coequal branch of government and imposing her own views upon it, when those views are shared by that branch of government - albeit whose aims are not reached by its current formulation of the law.
10.25.2007 3:25am
OrinKerr:
Bruce,

Doesn't Justice Ginsburg's dissent make quite clear that she opposes the majority rule as a matter of policy?

Bill,

I think you're missing the key step, though: Justice Ginsburg is not trying to influence the legislative process as a private individual, which is fine, but rather as a judge in her official capacity in her legal decisions.
10.25.2007 3:37am
OrinKerr:
theobromophile,

I understand you to be making the same argument as George Weiss in comment #2; I responded in comment #3.
10.25.2007 3:40am
David Schraub (mail) (www):
Prof. Kerr,

To be fair, I said that the judiciary is on the "front-lines" and thus I think it's a legitimate role for them in general (not just Sup. Ct. justices). For example, the other case I cited of a judge specifically urging a legislature to overturn a law he had just ruled upon was from the 11th Circuit Court of Appeals. Maybe that's still not "front-line" enough, but the point, I trust, is clear.
10.25.2007 3:55am
Bill Poser (mail) (www):
Orin,

The only way in which Justice Ginsburg used her official position was in given special prominence to her dissent. It seems to me that that is quite different from using her power as a Justice to influence Congress. Isn't it comparable to a Congressman giving a speech on his or her position on an issue before the courts, which we don't consider improper, do we?
10.25.2007 3:55am
Hewart:
Well, if it is entirely to the Legislative Branch to legislate, and the other branches must restrict themselves to either executing or interpreting the law, respectively, then surely all those signing statements from the Executive branch must be inappropriate encroachment on Article I prerogatives of Congress, no?
10.25.2007 4:07am
OrinKerr:
Bill,

You suggest that what Justice Ginsburg did "is quite different from using her power as a Justice to influence Congress." If that's so, why did she use the dissent as an example to demonstrate "another genre of dissent, one aiming to attract immediate public attention and to propel legislative change"? Her purpose, in her own words, was "to propel legislative change." Given that, I think what she did is quite similar to using her power as a Justice to influence Congress.
10.25.2007 4:18am
theobromophile (www):
<blockquote>
But isn't there an important difference between a) notifying Congress of the decision in case they missed it (your characterization of Ginsburg's goals) and b) trying "to propel legislative change" (Justice Ginsburg's own characterization of her goals)?
</blockquote>
But those overlap here.

Maybe I'm not understanding you (very real possibility), but it seems as if your criticism stems from the idea that she would be propelling legislative change 1) in the function of a Supreme Court justice (not an individual citizen, or a legal scholar); and 2) is doing so against the will of the Congress.

I'm not sure the latter point is there with the Ledbetter decision.

Alternatively, the problem is that I'm just too much of a realist to care much. If Ginsburg's dissents routinely beg Congress to change their laws, Congress can happily ignore her. She has no claim upon them, nor they upon her. Even if "propel legislative change" is read as you say it is read, it has no real force: she is like a parent who says to a toddler throwing a temper tantrum, "No! Stop! If you don't stop now, I'm going to have to tell you 'No' again."

<blockquote>
But shouldn't this be a two-way street? If it is improper for legislators to try to influence the outcomes of future cases, why is it perfectly okay for her as a Supreme Court Justice to try to influence the outcomes of future legislation?
</blockquote>
Yes, it should be a two-way street; realistically, however, it is easier for Congress to influence future cases (by filibustering nominees, administering litmus tests for Senate passage, or by creating a vast array of administrative agencies which will determine the bulk of adjudicated cases and will also be responsible to Congress), while justices can only beg the citizens to get angry enough about a result to harass their Congressperson to make a change.
10.25.2007 4:24am
tvk:
Orin,

The key part of your argument appears to be the "two way street" part, which I agree has some intuitive appeal. But, as has been pointed out, courts have some advantage in identifying good areas for legislative action. I think it is perfectly acceptable for courts to advocate, but not impose, congressional action.

The difference with judicial independence is that Congress is not advocating to courts how cases should be decided (it can do that in amicus briefs); it is dictating how those cases will be decided by choosing the decision-makers in a rigged way.
10.25.2007 4:25am
OrinKerr:
theobromophile,

No, I'm not suggesting #2. I assume that such a result is very much consistent with the majority preferences of the Democratic-led Congress that we presently have. I don't know about past or future Congresses, but Congress's action in this past year certainly suggests that more in Congress support the Ginsburg view than the Alito view as a matter of policy.

tvk,

I agree that it is perfectly acceptable for justices in their personal capacity to advocate for new statutory laws. They can write op-eds, give speeches, and the like, just like everyone else. But I believe what happened here is quite different, as I noted in the post and also in 4 or 5 different comments above.
10.25.2007 4:31am
phancy:
In response to the "two-way street" question:

You're conflating two ways of influencing. When Congress tries to "influence" the court by changing its jurisdiction it's acting out of self-aggrindizement: it's removed a significant check on its own power.

When Justice Ginsburg announces her alternative legal reasoning and urges Congress to act it doesn't remove a check on the power of the judiciary; it acknowledges the primacy of Congress by asking it to restore the correct law.

The analogous act by Congress would be to pass a non-binding resolution indicating it deeply disagrees with the court reading of X. That's not pernicious influence; that's a give and take between branches.
10.25.2007 4:33am
Mike& (mail):
But shouldn't this be a two-way street? If it is improper for legislators to try to influence the outcomes of future cases, why is it perfectly okay for her as a Supreme Court Justice to try to influence the outcomes of future legislation?


I think the means and methods are different. For example, Congress wanted to influence Supreme Court decisions by stripping them of jurisdiction over certain cases. That's different from what Ginsburg did or attempted to do. Her dissent was more like a non-binding Congressional resolution.

Let's say, however, that Ginsburg wanted to hold that Congress must vote on a bill amending law x in y way. Or, let's say Ginsburg wanted to hold that Congress could not overrule the Court's interpretation of Title VII. I think that would be conservative conduct more similar to what Ginsburg has criticized.

Now, if Ginsburg has criticized resolutions as an attack of judicial independence (has she?), then I think your criticisms would be well taken. A dissenting opinion, much like a Congressional resolution, is ultimately just a voicing of an opinion that has no legal effect. If Congress can't criticize the courts, then why should the courts be able to criticize Congress?

So I agree with you in principle. I just think that a dissenting opinion is disanalogous to jurisdictional stripped.

On a different level, though, I think you are right that Ginsburg does do what she criticizes Congress of doing. Namely, by declaring certain issues to be constitutional matters, she strips from the legislature the ability to decide such matters. For example, can the state use lethal injection as a means of killing someone? May the state allow people who committed crimes as juveniles to be executed? Those questions have been stripped from the legislature's hands.

To the extent the Constitution empowers Congress to manipulate results by stripping the Court of jurisdiction over some matters, I think Ginsburg has no basis to criticize such efforts. Congress gets its powers from the same document that purportedly gives her the power of judicial review.
10.25.2007 5:04am
Bill Poser (mail) (www):
Orin,

You say:

Given that, I think what she did is quite similar to using her power as a Justice to influence Congress.

I agree that there is a similarity, but there is still a difference that seems to me to be crucial. It is true that Justice Ginsburg used her position as a Justice to influence Congress; what she did not do is use her power as a justice in order to influence Congress. I think that the key factor is that she exerted no coercion of any sort. She didn't even address herself to Congress or say that Congress should do something. Merely doing her best to see to it that Congressmen and those who might influence them were aware of the issue is quite different from using the powers of the court to influence Congress.

Am I correct in thinking that you take it to be crucial that she read her dissent because this constitutes use of her position? What if, instead, she had given a speech away from the court in which she discussed her dissent and said that Congress should clarify the law? Would that be acceptable?
10.25.2007 6:20am
lurker:
Isn't it already a two way street? Is it improper for a legislator to express an opinion on what a statute at issue in a pending case means? Don't legislators' occasionally file amicus briefs?
10.25.2007 8:18am
Simon (391563) (mail) (www):
Orin-

To your last paragraph: Would you consider comments by district court judges (I'm recalling an opinion by Paul Cassell, I think, although there have been others) about the need to fix the sentencing guidelines the same as efforts by members of Congress to affect the outcome of one (or many) criminal cases?
10.25.2007 8:23am
Ignatius (www):
I agree with Professor Kerr. I think some would see his point more clearly if another justice had acted similarly. Imagine if Scalia's dissent in Rasul v. Bush had openly pleaded with Congress to remove habeus jurisdiction from Guantanamo Bay.
10.25.2007 8:58am
abb3w:
Perhaps I misunderstand the meaning of the term (actually, it's almost certain, since IAmNotALawyer), but could not such advocacy be included under a role as Court of Equity? That is to say, Ginsburg isn't just saying that not merely that this isn't the way that the law reads, but that any law that so reads is unfair?

It would be nice if somewhere in the court system, there might be concern expressible for Justice, as well as Law.
10.25.2007 9:04am
Temp Guest (mail):
When Congress chooses to influence the federal Courts, e.g., by threratening to or actually limiting their appelate jurisdiction, increasing or decreasing the number of federal courts and/or judges, increasing or decreasing federal judges staffs and/or salaries it is acting entirely appropriately within Constitutional guidelines set out in Article Three. The clear reading of the Article is that Congress has almost absolute control of the federal Court system. (Although, as Kurt Goedel worried, the Constitution may be self-contradicting if certain interpretations are taken to extremes.) On the other hand, Ginsberg is also acting within the constraints that English Common Law traditionally sets on judges: While judges may not legislate from the bench, they may certainly act in ways that affect, even force, the legfislative branch to enact new law. I cite the famous, late-18th century, English rape case involving issues of private prosecution and trial by combat as an example of this type of judicial "activism".
10.25.2007 9:06am
markm (mail):
Actors - people whose main talent is memorizing lines and faking emotions - frequently use their prominence to publicize political positions in spite of knowing no more about the subject than the average American, and sometimes Congress has even invited them to address a committee. To me that is much more egregious than a supreme court justice, who should be quite knowledgeable about the law (although I sometimes wonder whether Ginsburg really is), using her position to publicize her opinions about how legislation should be changed.

OTOH, did she write her dissent from an honestly different interpretation of the law, or from what she thought the law should be when it clearly says otherwise? In the second case, she was letting her politics interfere with her ability to do her own job, which is a whole different matter from writing a concurring opinion that says, "this is what the legislation says, but it gives bad results and should be changed."
10.25.2007 9:15am
Kenvee:
I don't think there's anything wrong with it, and I'm far from a fan of Ginsburg. In recent years, the Texas Legislature passed a law restricting the kind of frame you could put on a license plate. In practice, ANY frame that blocked the tiniest portion of a plate was illegal. This was pretty much giving the police a free-for-all excuse to stop anyone they wanted, which everyone acknowledged wasn't the purpose of the law. The Texas Court of Criminal Appeals held that the law was very straightforward and had to be read the way the police were reading it. But several of the judges wrote a concurring opinion that this was an "uncommonly bad law" and urged the Legislature to fix it.

I don't think that there's anything wrong with acknowledging that this is the way the law reads now and it will be upheld that way, but pointing out that it seems to have a lot broader reach or more pernicious impact than expected and should probably be modified. Actually, I think that's the way it SHOULD work. Judges shouldn't rewrite the law they think it should be written, but there's nothing wrong with them pointing out things that they are perhaps uniquely situated to see that could or should affect rewriting it.
10.25.2007 9:58am
MDJD2B (mail):

George, I really like your explanation. But isn't there an important difference between a) notifying Congress of the decision in case they missed it (your characterization of Ginsburg's goals) and b) trying "to propel legislative change" (Justice Ginsburg's own characterization of her goals)?


Justice Ginsburg knows the difference. In Aetna Health v. Davila she wrote a concurrence with Justice Breyer agreeing with the majority's legal argument that ERISA precluded state regulation of employee health plans, but saying that the law was bad.

Congress didn't listen and kept the law. (Note: I agree with RBG that the law is bad.)

So now she is taking Congress to the woodshed by dissenting instead of by concurring.
10.25.2007 10:07am
Justice Senator Thomas (mail) (www):
"I write separately to note that the law before the Court today "is … uncommonly silly." If I were a member of the Texas Legislature, I would vote to repeal it."
10.25.2007 10:07am
GV_:
Orin, I think the flaw in your reasoning is that any attempt to "influence" the other branch is per se wrong in Justice Ginsburg's mind. I suspect that's not true. The legislature could make suggestions to the court just like Ginsburg can make suggestions to the Congress. Justices testify before Congress about the workings of the court all the time and make suggested rule changes. Congress, on the other hand, files amicus briefs, the judicial equivalent of a suggestion. That seems to be a different animal entirely from what Justice Ginsburg is complaining about when she talks about the Congress threatening the judiciary's independence. Trying to influence the other branch is not the problem; it's how you go about doing it. For example, in the Second Amendment case, if Congress filed an amicus briefing arguing that the law allows it to do whatever the hell it wants with respect to gun legislation, that would be entirely proper. On the other hand, if it threatened to cut funding for the judiciary if it did not rule in its favor, that wouldn't be proper.

(As I was about to post this, I noticed that Bill Posner has made the same point, but has teased out the distinction better.)
10.25.2007 10:18am
TerrencePhilip:
This is especially remarkable since Ledbetter contained a better legal malpractice claim than a Title VII claim (i.e. they did not preserve their Equal Pay Act claim). What's next- will she have the Supreme Court press office issue her slate of endorsements for the next election?
10.25.2007 10:20am
Beryl:
Some commenters have asserted that Justice Ginsburg was merely inviting Congress to act, not actively lobbying for a statutory change favoring her preferred policy outcome That claim is refuted by Justice Ginsburg's own words in her speech.

At the end of her speech, she says:

I will continue to give voice to my dissent if, in my judgment, the Court veers in the wrong direction when important matters are at stake. I stress important matters because I try to follow Justice Brandeis' counsel. He cautioned that "in most matters it is more important that the applicable rule of law be settled than that it be settled right." One might put in that category an ambiguous provision of a complex statutory regime - the Internal Revenue Code, for example. Justices take comfort in such cases from the knowledge that Congress can amend the provision if it believes the Court has gone astray.

There can be no doubt that the section of Title VII of the Civil Rights Act of 1964 imposing a limitations period is indeed an "ambiguous provision of a complex statutory regime." Disputes over its interpretation have come before the Supreme Court several times. Moreover, both the majority and dissent in Ledbetter note that Congress amended Title VII in the past when it disagreed with a limitations decision by the Supreme Court.

Justice Ginsburg is explicit that, in Ledbetter, a mere dissent in inviting Congress to act was not enough for her. The dissent had to be read from the bench because the decision was "importantly and grievously misguided":

Typically, when Court decisions are announced from the bench, only the majority opinion is summarized. Separate opinions, concurring or dissenting, are noted, but not described. A dissent presented orally therefore garners immediate attention. It signals that, in the dissenters' view, the Court's opinion is not just wrong, but importantly and grievously misguided. Last term, a record seven dissents were summarized from the bench, six of them in cases the Court decided by 5-4 votes.

She went on to explain her view that

The Court's ruling, I observed for the dissenters, ignored real-world employment practices that Title VII was meant to govern... That situation, I urged, could not be what Congress intended when, in Title VII, it outlawed discrimination based on race, color, religion, sex, or national origin in our Nation's workplaces.

It is plain that Justice Ginsburg is advocating a particular point of view about "real-world employment practices" that she believes must be addressed in order to end sex discrimination in the workplace. She wants Congress to enact her preferred policy. That's lobbying.
10.25.2007 10:28am
Joe H.:
I think there is a difference between Congress trying to affect the courts (through, e.g., limiting its jurisdiction or picking certain justices to sit on the bench) which is within Congress' constitutional power. And Justice Ginsburg hoping that congress will react to a supreme court opinion. Justice Ginsburg has absolutely no way to affirmatively affect Congress, which explains why her desire to affect congress is consistent with her desire for congress to stop meddling with the supreme court's decision making, which congress can affirmatively do.
10.25.2007 10:36am
Skyler (mail) (www):
I don't understand the problem anyone has with a Justice advocating a change in the law. I find it refreshing that she would openly acknowlege that the legislature has some power after all!

Really, this is much ado about nothing. She's using a bully pulpit to try to make a law, in her opinion, more just or sensible. This has been done forever.

She has no power when she does this, except the power of persuasion. I really despise Justice Ginsberg with every fiber of my being, but this is an odd thing to be critical of.
10.25.2007 10:42am
Anderson (mail):
Count me among those who are completely confused by Prof. Kerr's point here. Ginsburg thought the statute was misconstrued by the majority; she hoped the Congress would rectify the misconstrual; she's gratified to see it happening.

Particularly in a dissent, which has the same legal force as an op-ed column, I don't see the problem at all.

What about Thomas's dissent in Lawrence, where he called the statute in question "uncommonly silly"? Wasn't he expressing an opinion that the law should be changed, and thus pushing for an enactment closer to his personal policy preferences?

I would appreciate Prof. Kerr's explanation of how Thomas's dissent is to be distinguished as regards the point he's making re: Ginsburg.
10.25.2007 10:45am
Anderson (mail):
Doh! I missed the comment making the same point about Thomas above.

See, it's a groundswell!
10.25.2007 10:48am
tvk:
Orin:

The difference between what I am saying and your previous responses is that I believe it is perfectly acceptable for Justices to advocate, in their capacity as Justices, legislative change -- as long as they are only advocating.

Congress, too, can do so in its official capacity if it wishes, again if it is only advocating. Filing an amicus brief of the Senate Committee for X on a case relevant to issue X would be an example. The difference is an element of coercion.

Now, granted, it is much harder for Congress to do anything without an element of coercion on the judiciary than vice versa. The Supreme Court suggesting a legislative change is quite self-evidently just that -- a suggestion. Congress suggesting a decision for a case almost always carries an implied threat that, if the outcome is not one that it likes, it will do something in retribution -- jurisdiciton stripping, confirmation fights, impeachment, etc. (I am deliberately not including prospecitve changes in a relevant statute, since that is not retribution).
10.25.2007 10:55am
Davide:
Orin,

Just a quick note to say, thanks for the insightful comment.

It's superb thinking like this that keeps me coming back to this site again and again.
10.25.2007 11:09am
Bama 1L:
I guess I do think you can have it both ways and that the legislature can direct the legislature's attention to problems without causing some separation of powers crisis. I further think that such direction is an fairly conventional purpose of judicial opinions.

In a statutory construction case where the dissenters believe the majority has misconstrued the statute and frustrated the legislative purpose, the most reasonable thing for the dissenters to do is explain the problem to the legislature. "The only way to get a law that does what you want it to is for you guys to pass a new one, and here are some pointers."
10.25.2007 11:10am
Beryl:
Some commenters note that it is appropriate for Justices to point out, in their opinions and dissents, ways in which Congress might correct injustice. Others have suggested that Justice Ginsburg was speaking as an individual citizen, albeit one with special access to a megaphone, and not in her capacity as a Justice.

It is precisely the conflation of these two roles that is troublesome here. Justice Ginsburg lauds the fact that dissents in 5-4 decisons were read from the bench six times last term. I described in my 9:28am post her explicit approval of highlighting, from the bench, her wish that Congress would enact her preferred policy outcome to overrule a narrow majority. Because other dissenters have also read their oipinion from the bench, there is an unstated implication that three other sitting members of the Court support such legislation.

Note that the format of her speech is not "I, Ruth Bader Ginsburg, a private citixen, have an interesting analysis of the role of reading dissents from the bench." It is "I, Justice Ginsburg, am explaining the reasons for reading my dissent." In the very next breath, she goes on to name with approval Senator Kennedy, probably the best-known political partisan on one side, also noting that President Bush, the best-known political partisan on the other side, is opposed. Such active lobbying by a sitting Justice risks serious danger for the long-term institutional interests of the Court.

I submit that Orin was correct in his original post:

If you dissent, then dissent. But trying to push Congress to enact a law that you like better isn't part of the job description.

Ginsburg here has gone beyond using the announcement of her decision to highlight an invitation for Congressional action. Would commenters here approve of her delivering the identical speech to the annual meeting of NOW or the ACLU? If not, why not?
10.25.2007 11:29am
tvk:
Bama1L: This is mixing George Weiss's point and mine. I think George made an insightful point, but there are really two issues here:

1. Can and should a dissent point out to the legislature that its will has been frustrated? Everyone here appears to agree, yes it can. Orin's refutation is that Justice Ginsburg, factually, isn't trying to do just this. She is going further and affirmatively trying to advocate for the change.

2. Can a Supreme Court Justice advocate for legislative change, as a Supreme Court Justice? My answer to this remains, "yes". Focusing on dissent is a distraction here is because I think even a majority opinion saying: "We think the law is stupid, it is constitutional so we will apply it, but we suggest that Congress change it" is perfectly acceptable.

Orin is troubled because if the Supreme Court, in its official capacity, can make suggestions in the legislative realm, it would be hypocritical to say that Congress cannot make suggestions in the judicial realm. My refutation of this is that Congress can make those suggestions (e.g. amicus briefs) -- it just can't dictate the results in the judicial realm, which is what confirmation fights, jurisdiction stripping, etc. are trying to do.
10.25.2007 11:30am
byomtov (mail):
I agree with those who distinguish between making a suggestion to Congress, as Ginsburg does, and using power to force a change on the Judiciary as Congress can threaten to do, via jurisdiction stripping or other means. Recall that Tom DeLay advocated impeaching judges whose rulings he disapproved of. Ginsburg's advocacy is in an entirely different category.
10.25.2007 11:41am
GV_:
For those that think Justice Ginsburg did something wrong, do you think district court judges do something wrong when they advocate for the commutation of a sentence when mandatory minimums require unjust results?
10.25.2007 11:50am
JosephSlater (mail):
I side with those who think Ginsburg was saying that Congress should act not because Title VII currently embodies a policy preference she does not share, but rather because she believes (with some justification, IMHO), that the majority did a poor job of statutory interpretation in Ledbetter.

It's worth adding some context here. Title VII has already been amended once in large part because Congress believed that the Supreme Court had been misinterpreting Title VII to be too defendant-friendly. See the 1991 Civil Rights Act, and its references (in the text and legislative history) to overturning, e.g., the S. Ct.'s decision in Ward's Cove v. Atonio.

While that's not all the 1991 CRA did, it was quite clear that Congress felt that the Court had read existing language in Title VII too restrictively. It's fair to believe that Ledbetter is another example of that, and fair even for a Supreme Court justice to suggest a similar solution.
10.25.2007 11:56am
NaG (mail):
I don't think what Justice Ginsburg did was wrong either, just like I don't think Justice Thomas' dissent in Lawrence was wrong. Sometimes Congress passes a law that is screwed up. I don't see any problem with a Justice who naturally points out that Congress needs to fix the problem. The only I problem I see is when Congress passes a screwed up law and the Court rewrites it to suit them.
10.25.2007 12:02pm
DavidBernstein (mail):
Orin, it is disturbing, but more disturbing is her view of statutory interpretation:

The Court's ruling, I observed for the dissenters, ignored real-world employment practices that Title VII was meant to govern: "Sue early on," the majority counseled, when it is uncertain whether discrimination accounts for the pay disparity you are beginning to experience, and when you may not know that men are receiving more for the same work. (Of course, you will likely lose such a less-than-fully baked case.) If you sue only when the pay disparity becomes steady and large enough to enable you to mount a winnable case, you will be cut off at the court's threshold for suing too late. That situation, I urged, could not be what Congress intended when, in Title VII, it outlawed discrimination based on race, color, religion, sex, or national origin in our Nation's workplaces.

The idea that the content of legislation inherently matches up precisely with the Justices' view of what the content should logically be to achieve the purported goals of the statute is unwarranted. Among other things, it neglects the very real possibility that Congress intentionally announces broad goals to soothe popular opinion or particular interest groups, and then intentionally structures the law to limit the impact on the businesses it is supposed to regulate, thus protecting the economy and satisfying other interest groups. This happens all the time, but the law is only what the law explicitly says, not the Justices' view of what the law SHOULD say to be achieve its announced goals.
10.25.2007 12:09pm
A.W. (mail):
I pretty much agree with everything you wrote, and i share how troubled you are. But let me play devil's advocate, for a minute. Maybe by allowing her to try to influence the legislative process, she will feel more comfortable not inserting her policy preferences into her opinions.

But you are hitting on a larger point, which is that the more the court actually is, or is percieved to be, a creature of politics rather than cold law, then the desire to compromise judicial independance becomes all the more powerful. The Bork nomination fight, the Thomas nomination fight and so on, are all the direct result of Roe v. Wade, and the very correct perception that the status of the decision depends uniquely on the inclination of the justices and not anything written down by anyone. Its hard to allow people to independantly judge a matter when its an "eye of the beholder" type of issue.
10.25.2007 12:10pm
Smokey:
My wife just got out of surgery, and I really needed a really big belly laugh to lighten my mood.

Kazinsky provided it in the very first post:
"...Justice Ginsberg trying to influence Congress: Congress may try to influence the courts in the wrong direction, Ginsberg's influence will unerringly be in the right direction."
Thanx for the yuks.


If this isn't a judge desperate to legislate, then what is??
10.25.2007 12:13pm
Hirbod (mail):
Orin,
How did you feel a few years ago when your former employer, Justice Kennedy, lobbied the ABA to lobby Congress to change the mandatory sentencing guidelines? Did you feel same way? I think Ginsburg's comments are ok as I agree w/ the view that she simply thinks the majority misapplied the statute and she thinks Congress should fix it.

Justice Kennedy's remarks are available at here.
10.25.2007 12:14pm
Skyler (mail) (www):
Beryl, I think the expectation that there are no politics in the judicial branch is hopelessly naive. It has ever been thus.

The only difference is that Ginsburg is not masking her political persuasion. Did anyone have any serious uncertainties as to which political persuasion she supports?

A dissent has no force of law. A justice, acting alone, has no power. Her dissent is just words, not bayonets.
10.25.2007 12:15pm
PLR:
If it is improper for legislators to try to influence the outcomes of future cases, why is it perfectly okay for her as a Supreme Court Justice to try to influence the outcomes of future legislation?

Legislators influence the outcome of future cases all the time, by passing sentencing guidelines for example. The problem is when Congress seeks to affect the deliberations of the independent decisionmaker, such as by threatening to withhold pay, or to demand that a judge commit to a certain decision before he or she is confirmed.

Ginsburg has no more influence on the 535 members of Congress than any other highly regarded legal scholar, and she certainly has far less influence than the people who finance re-election campaigns. And as someone pointed out long ago, Congress as a political body is designed to receive and filter influence, while the judiciary (in the case of the U.S.) is not.

There was a hyopothetical from one writer about Scalia asking for habeas to be withdrawn explicitly from detainees. If Scalia were talking about statutory habeas, that wouldn't bother me either.

Interesting discussion, but I'm not concerned that actions like Ginsburg's are tampering.
10.25.2007 12:16pm
Adeez (mail):
"If this isn't a judge desperate to legislate, then what is??"

Oh, wait, I know: a judge desperately trying to tell the idiots in Congress that they need to amend their statute ASAP so that plaintiffs don't suffer needlessly by a court ruling that clearly runs afoul of the statute's intent.
10.25.2007 12:22pm
PLR:

The idea that the content of legislation inherently matches up precisely with the Justices' view of what the content should logically be to achieve the purported goals of the statute is unwarranted. Among other things, it neglects the very real possibility that Congress intentionally announces broad goals to soothe popular opinion or particular interest groups, and then intentionally structures the law to limit the impact on the businesses it is supposed to regulate, thus protecting the economy and satisfying other interest groups. This happens all the time, but the law is only what the law explicitly says, not the Justices' view of what the law SHOULD say to be achieve its announced goals.

All of that may be true, and if so, then Ginsburg's comments will be falling on deaf ears, especially after the usual suspects who represent management make their views known to members of Congress.

And as far as what the law explicitly says, it says only that claims must be filed within 180 days "after the alleged unemployment practice occurred." The law says nothing about exactly what a "practice" is, which is a question on which the District Court and Court of Appeals disagreed, and on which the high court split 5 to 4.
10.25.2007 12:28pm
DavidBernstein (mail):
The fact that the current Congress may be willing to modify the law says exactly nothing about what the law stated, or was meant to state, in 1964.
10.25.2007 12:45pm
Smokey:
Adeez says another example of a judge desperate to legislate is...
...a judge desperately trying to tell the idiots in Congress that they need to amend their statute ASAP so that plaintiffs don't suffer needlessly by a court ruling that clearly runs afoul of the statute's intent.
True dat [and to hell with the defendant, huh?]. Seems they all want to meddle in legislation to some degree. Which is improper.

And 'intent,' versus the written word, reminds me of the old vulagarism, "I don't intend to come in your mouth." Intent takes a back seat to written language, because it amounts to mind reading.

Justices should rule on constitutionality, not double-team a playa they disagree with. Because when they do that, it's truly slippery slope time, and bye-bye to our separate branches of gov't.
10.25.2007 12:46pm
Beryl:
Skyler,

Of course people have always known about Justice Ginsburg's political persuasion: she had worked for the ACLU before her nomination. And of course her dissent is mere words. But she went beyond dissenting at the Court.

What we have here is a case of Daniel Patrick Moynihan's "defining deviancy down." Expanding on a dissent by advocating, in a public lecture, an openly partisan solution to a policy issue, risks drawing the Court ever more deeply into the hand-to-hand combat that today's legislative process in Congress appears to have become. It also makes it more plausible that it would be acceptable for a Justice to deliver a similar lecture before an audience like NOW or the ACLU.

Is it good for our society to push confirmation battles even further toward straight party-line votes than they are already? I think Justice Ginsburg's actions exacerbate that risk.
10.25.2007 12:51pm
fennel:
I've got to say I don't really follow your argument in this post. If Ginsburg's legal interpretation had prevailed, no legislative change would be necessary. She is not calling for legislation to fix what she views as a flawed law (an inappropriate foray into the legislative arena), she is calling on Congress to fix a flawed interpretation of a perfectly good law. The latter move seems like a squarely judicial function.

It would be no less an invasion of congressional or state sovereignty for a conservative justice to simply state in an opinion that Roe v. Wade could be reversed through a constitutional amendment. Such a conservative justice would not be telling Congress or the states what should or shouldn't be in the Constitution as a matter of policy or personal preference. Rather, this justice would be criticizing his colleagues interpretation of the Constitution and suggesting a fairly obvious remedy.

I see no problem with this.
10.25.2007 1:03pm
SIG357:
Would we criticize a member of Congress, or Congress as a whole, for expressing an opinion about the proper interpretation of the Constitution?



It is part of the job description of members of Congress to have opinions about the proper interpetation of the Constitution, since (in theory at least) they have to make these determinations every time they consider legislation.

Regardless of what the courts may imagine, they are not the sole custodians of the Constitition.
10.25.2007 1:09pm
SIG357:
I agree with those who distinguish between making a suggestion to Congress, as Ginsburg does, and using power to force a change on the Judiciary as Congress can threaten to do, via jurisdiction stripping or other means. Recall that Tom DeLay advocated impeaching judges whose rulings he disapproved of. Ginsburg's advocacy is in an entirely different category.




The Constitution specifically gives Congress the authority and the right both to impeach judges for any reason (they serve during "good behavior") and to limit those matters the courts may consider.

So I can't agree with your insinuation that there is something disreputable about Congress exercising it's Constitutional powers.

Yes, Ginsburgs remarks are in a different category. DeLays comments were in accordance with the text and spirit of the Constitution, while hers were not.
10.25.2007 1:16pm
Dave M (mail):
This seems like much ado about nothing. Justices routinely invite Congress to take some action. E.g., Chief Justice Rehnquist's majority opinion in Leatherman v. Tarrant. Justice Brandeis drafted bills to abolish diversity jurisdiction and had Felix Frankfurter lobby Congress for their passage. In comparison, Justice Ginsburg's request in her dissent for a legislative override seems utterly innocuous. Indeed, it's the sort of healthy inter-branch dialogue that seems to me inherent in the notion of a separation of powers.
The suggestion that Justice Ginsburg is calling the kettle black cannot be right. There seems to be an enormous difference between a Justice expressing her policy preferences (i.e., "I hope Congress will act in a particular way") and a legislator threatening the judiciary with punitive measures (i.e., jurisdiction-stripping) or trying to limit how courts decide cases (i.e., courts cannot rely on international law in decisions). It's perfectly acceptable for a legislator to say, "I hope the Court decides X." I can't imagine Justice Ginsburg would have a problem with this. I also can't imagine Justice Ginsburg threatening Congress in an opinion that it cannot rely on a certain type of testimony to support a bill, or threatening Congress that, if it passes a law she doesn't like, she'll try to get the Court to respond by limiting Congress's power in the future.
10.25.2007 1:18pm
Bart (mail):
Judicial independence as Justices Ginsberg and O'Connor have been advocating means that neither the other branches nor the people may take action against or even criticize the courts for decisions which rewrite the Constitution and statute to meet their own policy preferences.

This exceedingly arrogant view is contrary to the rule of law, the idea of checks and balances between the branches, and the idea that the government is answerable to the People.

The concept behind judicial independence is that the democracy should not influence the court's impartial and objective interpretation and application of the law. However, when court is not impartial and is instead unlawfully imposing its policy preferences on the democracy, then it deserves no deference from the elected branches.

If O'Connor and Ginsberg wish to legislate, they can run for Congress.
10.25.2007 1:26pm
NaG (mail):
I think Bernstein is right to note that Justice Ginsburg's position was essentially as follows: "The Law says X, but I think that's ridiculous -- Y would be better. I would vote to interpret the Law to say Y, but since I don't have a majority, I'd like Congress to change the law to say Y."

That she would like Congress to change the law to Y is perfectly fine. That she would be willing to interpret a law to suit her policy preferences even in the face of the plain language of the statute -- that's a problem.

Frankly, I think more judges telling Congress, "DO YOUR JOB!" would be a good thing.
10.25.2007 1:29pm
Toby:
The intention of any particular lobbyist or legislator back in 1964 is close to irelevant. Assuming that the legilsator had some commandof the English language, they could have written the law differently. Maybe they did, and in that form, it did not get enough votes to pass. Maybe they had to change from their initial intent (and the language that describes it) to get the votes to pass. What actually received votes, what actually was signed, is the law as written. The whole notion of "well, she's just asking that the law be re-written to match whatwas intended" is fatuous.

Ginsberg, long an advocate before coming to the court, was willing to legislate from the bench to get the law to mean what she wanted it to mean, the definition of an activist judge. Maybe 1 or 3 other justices were as well, or maybe some of them dissented for slightly different reasons. But Ginsberg has identified herself in the public record as ruling her personal tastes as superceding the law.
10.25.2007 1:37pm
PLR:
I think Bernstein is right to note that Justice Ginsburg's position was essentially as follows: "The Law says X, but I think that's ridiculous -- Y would be better. I would vote to interpret the Law to say Y, but since I don't have a majority, I'd like Congress to change the law to say Y."

I don't agree. What Ginsburg is saying is "The law says X. The justices on the Supreme Court are split on whether X means that the petitioner is time barred from recovering all damages that would be attributable to ongoing employment practices that the Act of Congress was designed to discourage. I think the time bar does not run from the first day on which the employer engages in an unlawful discriminatory act (which would be a stupid result, since most limitation periods run from discovery of a cause of action). Congress may want to consider this."
10.25.2007 1:58pm
Bruce:
"Bruce, Doesn't Justice Ginsburg's dissent make quite clear that she opposes the majority rule as a matter of policy?"

OK, so now we're moving from a claim that the speech is an improper effort at lobbying, to the dissent was improper, and the speech just highlights it? I don't think that works either. I don't see anything in the dissent that looks any different than what's in the speech. E.g., "This is not the first time the Court has ordered a cramped interpretation of Title VII, incompatible with the statute's broad remedial purpose. [Citations.] Once again, the ball is in Congress' court. As in 1991, the Legislature may act to correct this Court's parsimonious reading of Title VII."
10.25.2007 1:59pm
byomtov (mail):
Yes, Ginsburgs remarks are in a different category. DeLays comments were in accordance with the text and spirit of the Constitution, while hers were not.

You mean the First Amendment doesn't protect the free speech rights of Supreme Court Justices?
10.25.2007 2:03pm
TruePath (mail) (www):
Uhh, I don't think Ginsburg would complain if congress tried to influence judicial decisions by making compelling legal arguments in public.
10.25.2007 2:17pm
ObeliskToucher:
I don't mind Ginsburg expressing her opinion, or that she's glad that Congress is taking action. As far as her disappointment at Pres. Bush's veto threat goes, though, I'd just comment "Welcome to the legislative process, Citizen Ruth -- perhaps the next time you try this gambit, you'll spend some time considering how to propel change within the Executive branch, as well."
10.25.2007 2:24pm
jpe (mail):

But isn't Justice Ginsburg's language actually pretty clear in this case? "propel legislative change . . . The response was just what I contemplated. . . ." etc.


Christopher M was correct way upthread: Ginsburg is using her bully pulpit and persuasion of the position, not the power of the position. It's the difference between a President giving a public speech intended to spur Congressional action and just issuing an executive order enacting his policy preference.
10.25.2007 2:37pm
oh brother:
orin's outrage rests solely on a linguistic argument. that is, he reads a great deal into ginsburg's own choice of the word "propel."

"Propel" means "to drive forward or onward by or as if by means of a force that imparts motion." m-w.com

Orin said he would not disapprove of a dissent that simply "pointed out" to Congress that the Supreme Court has interpreted the statute in a way that conflicts with Congress's understanding of the text.

Yet such a dissent fits the definition of "propel." "Propel" does not mean "advocate," which is what Orin seems to infer from ginsburg's use of propel.

Overall, this post is pretty dumb, and I have noticed some awkward semantic arguments in Professor Kerr's posts recently.

Arguments that assume that because a speaker chose a specific word, they meant a hyper-specific thing rather than another equally plausible thing (such as, perhaps, the dictionary definition) are rarely convincing. Ask Eugene.
10.25.2007 2:51pm
Markusha (mail):
I can only second Anderson's (:45am post. I really do not follow Orin's argument here. Ginsburg is calling Congress' attention to the wrong (according to her) interpretation of the statute reached by the majority. Ginsburg thinks that the majority's interpretation misconstrues statute and frustrates Congress' intent. Accordingly, she's calling on Congress to clarify the law to make the correct (according to her) interpretation explicit. Why is it bad? As others noted, Justices call legislature's attention to wrong statutes all the time; why should they not call attention to correct statutes which have been misinterpreted?

And I really disagree with Professor Bernstein's view that Congress' statute may simply be a charade for us, so that we THINK that Congress did something meaningful when in fact, it did not. It's Professor Bernstein's view that strains credulity, not Justice Ginsburg's.
10.25.2007 3:27pm
Oren (mail):
I second Markusha ^^; there is nothing sinister whatsoever about her "propelling" Congress towards writing a more clear statue. I don't think she would be upset (although she might be personally disappointed) if Congress came back with a resolution affirming the SCOTUS interpretation as being consistent with their intent.

Such a result, of course, is absurd since it is beyond evident that the Court's interpretation is not consistent with Congressional intent (I'll punt on whether the Court's interpretation is consistent with the statutory language).
10.25.2007 3:42pm
Kelvin McCabe:
Justice Stevens, writing for the majority in Raich v Gonzales:

Respondents also raise a substantive due process claim and seek to avail themselves of the medical necessity defense. These theories of relief were set forth in their complaint but were not reached by the Court of Appeals. We therefore do not address the question whether judicial relief is available to respondents on these alternative bases. We do note, however, the presence of another avenue of relief. As the Solicitor General confirmed during oral argument, the statute authorizes procedures for the reclassification of Schedule I drugs. But perhaps even more important than these legal avenues is the democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress.

Does the fact that this allusion to a Congressional remedy occured in the majority as opposed to dissenting opinion change the analysis at all? Does Justice Stevens, writing for the majority, overstep his bounds - or is this simply what Justice Ginsberg should have done in her dissent - say "take it up with Congress" and leave it at that? Is that an effective remedy when she is implying that the Congress had already "took it up" but that the Court misinterpreted Congress' intent and that Congress now needs to clarify said intent?
10.25.2007 3:47pm
Adam J:
This seems like a strange argument, because it's quite frequent that a legislator attempts "to attract immediate public attention and to propel [judicial] change" when a case comes out in a way the legislator doesn't like- and there's nothing inappropriate about that.
10.25.2007 3:51pm
David Schraub (mail) (www):
It's come to my attention that the quote I referenced from Judge Birch isn't in the main opinion, but rather in the opinion he wrote denying rehearing en banc. So if you couldn't find it, that's why.
10.25.2007 4:50pm
Justin (mail):
Is DB actually arguing that legislative history and common sense should be ignored because

1) Congress may be trying to trick and obfuscate the people that they purport to represent

AND

2) That is a "good thing" that we should encourage??????

Really?
10.25.2007 5:00pm
DavidBernstein (mail):
"Legislative history" is simply not the law. "Common sense" doesn't resolve the statutory issue in this case one way or another, unless you accept Ginsburg's assumption that ambiguous language should always be construed to further the goal of eradicating discrimination, as opposed to goals like finality, reducing litigation costs, discouraging speculative lawsuits and so forth.
10.25.2007 5:13pm
byomtov (mail):
ambiguous language should always be construed to further the goal of eradicating discrimination, as opposed to goals like finality, reducing litigation costs, discouraging speculative lawsuits and so forth.

Doesn't ambiguous language encourage litigation, including "speculative lawsuits?"
10.25.2007 5:19pm
Brian K (mail):
"Legislative history" is simply not the law. "Common sense" doesn't resolve the statutory issue in this case one way or another, unless you accept Ginsburg's assumption that ambiguous language should always be construed to further the goal of eradicating discrimination, as opposed to goals like finality, reducing litigation costs, discouraging speculative lawsuits and so forth.

If the language is ambiguous what besides personal ideology can say which goal(s) is (are) better?
10.25.2007 5:31pm
Brian K (mail):
And if no objective criteria exists to rank the goals, why should your ideology trump ginsburg's (or anyone else's for that matter)?
10.25.2007 5:33pm
Justin (mail):
That's whatever point it is DB (far be it for this minor forum to resolve the great debate about the place for legislative history) but I was focusing on the point you made before - that you shouldn't interpret an ambiguous statute in favor of the expressed goal, not because of some straightforward "legislative intent is irrelevant" argument, but because we should not only consider but give legal weight to the possibility that the true legislative intent was to do nothing other than deceive constituents.

If we're for (or at least neutrally fine with) deceiving-constitutents, what does that say about our normative views towards the democratic process and accountability? And wouldn't such a positive understanding of the role of lawmakers destroy any normative argument in favor of the unitary executive?
10.25.2007 5:35pm
Anderson (mail):
"Legislative history" is simply not the law.

Neither is the dictionary, for example. And yet, some find it helpful in ascertaining the meaning of a statute.
10.25.2007 6:30pm
David M. Nieporent (www):
What about Thomas's dissent in Lawrence, where he called the statute in question "uncommonly silly"? Wasn't he expressing an opinion that the law should be changed, and thus pushing for an enactment closer to his personal policy preferences?
Obviously not. Since Thomas was arguing that it was silly, he obviously wasn't telling the legislature to keep the law. Since the Court had ruled that it was unconstitutional, the law was already changed, and there was nobody to "push" to "enact" anything.


And I really disagree with Professor Bernstein's view that Congress' statute may simply be a charade for us, so that we THINK that Congress did something meaningful when in fact, it did not. It's Professor Bernstein's view that strains credulity, not Justice Ginsburg's.
That's not what DB said. What he said was that Congress' statute means what it says, not whatever would best accomplish what Ginsburg thinks the purpose of the law was. The fact that a law isn't drafted in a way to successfully achieve the result Ginsburg thinks it was designed to achieve may be a feature, rather than a bug as far as Congress was concerned. The way to resolve this is to look at what Congress wrote, not to abstract away from what they wrote to divine the 'purpose' of the law.
10.26.2007 12:43am
c.l. ball:

The fact that a law isn't drafted in a way to successfully achieve the result Ginsburg thinks it was designed to achieve may be a feature, rather than a bug as far as Congress was concerned. The way to resolve this is to look at what Congress wrote...

Well, if Congress writes "An Act To appear to eliminate employment discrimination but to in fact prevent effective enforcement..." you have a point. Otherwise, if Congress says the purpose of the act is to prevent discrimination and there is an ambiguity, why is it unreasonable to allow an agency executing the act to interpret it in a way that fulfills rather than undermines the stated purpose of the act? Why should the courts posit a number of textual consistent rationales while overlooking the ones written in the act?

Ginsberg's oration of her written dissent, not the dissent itself was designed to propel legislative change. That is not wrong any more than it is wrong anymore than it is wrong for a legislator in session arguing that courts should interpret the constitution or laws by a certain legal philosophy or stating that they support the views of one petitioner over the other. But that is different from "closely scrutinizing appointees on political grounds" or threatening to impeach judges who rule in ways that the legislator opposes. The former is fine; the latter is improper, just as it would be improper if Ginsberg argued that her reason for the dissent itself, not reading it, was designed to propel legislative change rather than interpret the statute.

Irrelevant to the key point, but worth noting is that the majority interpretation of Title VII now encourages employees to file with state or local agencies in speculative ways in order to start the 300 day clock for EEOC charge rather than the 180 day clock.
10.26.2007 11:24am
David M. Nieporent (www):
Ginsberg's oration of her written dissent, not the dissent itself was designed to propel legislative change. That is not wrong any more than it is wrong anymore than it is wrong for a legislator in session arguing that courts should interpret the constitution or laws by a certain legal philosophy or stating that they support the views of one petitioner over the other.
The two situations are not parallel. The role of the legislature is normative; they decide what the law should be. Their policy preferences count. The Supreme Court is only supposed to decide what the law is. Their policy preferences are supposed to be irrelevant.
10.26.2007 2:29pm
Eli Rabett (www):
As I recall the Bridgeport eminent domain case was a big if you want to change the law do it to Congress and the state legislatures.
10.26.2007 11:48pm