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Ruth Bader Ginsburg and the Politics of Dissent

Is dissenting from the bench a matter of passion or politics for Supreme Court Justice Ruth Bader Ginsburg?  That's the provocative question that blogger Ann Althouse posed back in May, discussing this New York Times article by Linda Greenhouse on Ginsburg's unprecedented delivery of two oral dissents during the 2006-07 Supreme Court term.  In Althouse's view, Greenhouse inaccurately described Ginsburg's dissents as emotional expressions of passion about issues like partial birth abortion and unequal pay in employment cases.  By contrast, Althouse characterized Ginsburg's dissents as political; carefully calculated political moves designed to bring Americans' attention to the work of the court.

Earlier this week, Ginsburg shed light on her reason for oral dissents, as this post at SCOTUS Blog describes.  Ginsburg said that she would give voice to her dissents if she believed that the Court veers in the wrong direction on important issues - but would not dissent routinely.  Ginsburg's explanation for her dissents could be construed as motivated by politics (to bring about change) or passion (to show strong opposition to an ill-advised change of direction by the Court) or both.

But at Volokh, Orrin Kerr views Ginsburg's oral dissents as politics; and indeed, as so political they affect the balance of power between the Executive and Judicial branches.  From Kerr's post:

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.

In Kerr's view, Ginsburg goes beyond simply holding political beliefs which color her rulings.  Rather, Kerr writes that Ginsburg "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."
And Kerr wonders: "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?"

Kerr's suggestions are interesting, to be sure.  But Scott Greenfield at Simple Justice disagrees with Kerr, asserting that he took Ginsburg's comments out of context.  Greenfield argues that Ginsburg advocated congressional action in Ledbetter because the Court had determined that it could not make allowances for a plaintiff who filed a complaint about unequal pay where the 180-day deadline for filing complaints was set by statute and could not be waived.  In other words, Ginsburg was simply saying that there was nothing the Court could do to grant relief; if Congress did not like the result, it would need to make the fix.  Greenfield found this advice a perfectly reasonable response, not, as Kerr suggests, an attempt to influence Congress.

Moreover, even if Ginsburg were attempting to influence what?  Realistically, what can a single judge on a Court that does not publicize its proceedings on TV do to force Congress to take action, or even to force Americans to force their representatives to take action?  By contrast, a legislator can influence the outcome of cases either by changing laws and overriding a judicial decision, or using his or her power to approve judicial nominees who will produce the desired outcomes.

Posted by Carolyn Elefant on October 25, 2007 at 03:58 PM | Permalink | Comments (1)


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