“Just Noticing”: Observations of a blogger
Posted by Michelle Moquin on September 1st, 2013
Good morning!
“Just noticing….”
Court Is ‘One of Most Activist,’ Ginsburg Says, Vowing to Stay
Justice Ruth Bader Ginsburg, in her chambers on Friday, said she hoped that some of her sharp dissents “will one day be the law.
In wide-ranging remarks in her chambers on Friday that touched on affirmative action, abortion and same-sex marriage, Justice Ginsburg said she had made a mistake in joining a 2009 opinionthat laid the groundwork for the court’s decision in June effectively striking down the heart of theVoting Rights Act of 1965. The recent decision, she said, was “stunning in terms of activism.”
Unless they have a book to sell, Supreme Court justices rarely give interviews. Justice Ginsburg has given several this summer, perhaps in reaction to calls from some liberals that she step down in time for President Obama to name her successor.
On Friday, she said repeatedly that the identity of the president who would appoint her replacement did not figure in her retirement planning.
“There will be a president after this one, and I’m hopeful that that president will be a fine president,” she said.
Were Mr. Obama to name Justice Ginsburg’s successor, it would presumably be a one-for-one liberal swap that would not alter the court’s ideological balance. But if a Republican president is elected in 2016 and gets to name her successor, the court would be fundamentally reshaped.
Justice Ginsburg has survived two bouts with cancer, but her health is now good, she said, and her work ethic exceptional. There is no question, on the bench or in chambers, that she has full command of the complex legal issues that reach the court.
Her age has required only minor adjustments.
“I don’t water-ski anymore,” Justice Ginsburg said. “I haven’t gone horseback riding in four years. I haven’t ruled that out entirely. But water-skiing, those days are over.”
Justice Ginsburg, who was appointed by President Bill Clinton in 1993, said she intended to stay on the court “as long as I can do the job full steam, and that, at my age, is not predictable.”
“I love my job,” she added. “I thought last year I did as well as in past terms.”
With the departure of Justice John Paul Stevens in 2010, Justice Ginsburg became the leader of the court’s four-member liberal wing, a role she seems to enjoy. “I am now the most senior justice when we divide 5-4 with the usual suspects,” she said.
The last two terms, which brought major decisions on Mr. Obama’s health care law, race and same-sex marriage, were, she said, “heady, exhausting, challenging.”
She was especially critical of the voting rights decision, as well as the part of the ruling upholding the health care law that nonetheless said it could not be justified under Congress’s power to regulate interstate commerce.
In general, Justice Ginsburg said, “if it’s measured in terms of readiness to overturn legislation, this is one of the most activist courts in history.”
The next term, which begins on Oct. 7, is also likely to produce major decisions, she said, pointing at piles of briefs in cases concerning campaign contribution limits and affirmative action.
There is a framed copy of the Lilly Ledbetter Fair Pay Act of 2009 on a wall in her chambers. It is not a judicial decision, of course, but Justice Ginsburg counts it as one of her proudest achievements.
The law was a reaction to her dissent in Ledbetter v. Goodyear Tire and Rubber Company, the 2007 ruling that said Title VII of the Civil Rights Act of 1964 imposed strict time limits for bringing workplace discrimination suits. She called on Congress to overturn the decision, and it did.
“I’d like to think that that will happen in the two Title VII cases from this term,but this Congress doesn’t seem to be able to move on anything,” she said.
“In so many instances, the court and Congress have been having conversations with each other, particularly recently in the civil rights area,” she said. “So it isn’t good when you have a Congress that can’t react.”
The recent voting rights decision, Shelby County v. Holder, also invited Congress to enact new legislation. But Justice Ginsburg, who dissented, did not sound optimistic.
“The Voting Rights Act passed by overwhelming majorities,” she said of its reauthorization in 2006, “but this Congress I don’t think is equipped to do anything about it.”
Asked if she was disappointed by the almost immediate tightening of voting laws in Texas and North Carolina after the decision, she chose a different word: “Disillusioned.”
The flaw in the court’s decision, she said, was to conclude from the nation’s progress in protecting minority voters that the law was no longer needed. She repeated a line from her dissent: “It is like throwing away your umbrella in a rainstorm because you are not getting wet.”
Chief Justice John G. Roberts Jr. wrote the majority opinion, and he quoted extensively from a 2009 decision that had, temporarily as it turned out, let the heart of the Voting Rights Act survive. Eight members of the court, including Justice Ginsburg, had signed the earlier decision.
On Friday, she said she did not regret her earlier vote, as the result in the 2009 case was correct. But she said she should have distanced herself from the majority opinion’s language. “If you think it’s going to do real damage, you don’t sign on to it,” she said. “I was mistaken in that case.”
Some commentators have said that the two voting rights decisions are anexample of the long game Chief Justice Roberts seems to be playing in several areas of the law, including campaign finance and affirmative action. Justice Ginsburg’s lone dissent in June’s affirmative action case, leaving in place the University of Texas’ admissions plan but requiring lower courts to judge it against a more demanding standard, may suggest that she is alert to the chief justice’s apparent strategy.
Justice Ginsburg is by her own description “this little tiny little woman,” and she speaks in a murmur inflected with a Brooklyn accent. But she is a formidable force on the bench, often asking the first question at oral arguments in a way that frames the discussion that follows.
She has always been “a night person,” she said, but she has worked even later into the small hours since her husband, Martin D. Ginsburg, a tax lawyer, chef and wit, died in 2010. Since then, she said, there is no one to call her to bed and turn out the lights.
She works out twice a week with a trainer and said her doctors at the National Institutes of Health say she is in fine health.
“Ever since my colorectal cancer in 1999, I have been followed by the N.I.H.,” she said. “That was very lucky for me because they detected my pancreatic cancer at a very early stage” in 2009.
Less than three weeks after surgery for that second form of cancer, Justice Ginsburg was back on the bench.
“After the pancreatic cancer, at first I went to N.I.H. every three months, then every four months, then every six months,” she said. “The last time I was there they said come back in a year.”
Justice Ginsburg said her retirement calculations would center on her health and not on who would appoint her successor, even if that new justice could tilt the balance of the court and overturn some of the landmark women’s rights decisions that are a large part of her legacy.
“I don’t see that my majority opinions are going to be undone,” she said. “I do hope that some of my dissents will one day be the law.”
She said that as a general matter the court would be wise to move incrementally and methodically. It had moved too fast, she said, in Roe v. Wade, the 1973 decision that established a constitutional right to abortion. The court could have struck down only the extremely restrictive Texas law before it.
“I think it’s inescapable that the court gave the anti-abortion forces a single target to aim at,” she said. “The unelected judges decided this question for the country, and never mind that the issue was in flux in the state legislatures.”
The question of same-sex marriage is also in flux around the nation. In June, the court declined to say whether there was a constitutional right to same-sex marriage, allowing the issue to percolate further. But Justice Ginsburg rejected the analogy to the lesson she had taken from the aftermath of the Roe decision.
“I wouldn’t make a connection,” she said.
The fireworks at the end of the last term included three dissents announced from the bench by Justice Ginsburg. Such oral dissents are rare and are reserved for major disagreements.
One was a sharp attack on Justice Samuel A. Alito Jr.’s majority opinion in a job discrimination case, and he made his displeasure known, rolling his eyes and making a face.
Justice Ginsburg said she took it in stride. “It was kind of a replay of the State of the Union, when he didn’t agree with what the president was saying” in 2010 about the Citizens United decision. “It was his natural reaction, but probably if he could do it again, he would have squelched it.”
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September 2nd, 2013 at 7:13 am
I don’t agree with Ginsburg about hanging around. This decision could be much worst than the one she made in NORTHWEST AUSTIN MUNICIPAL UTILITY
DISTRICT NUMBER ONE v. HOLDER,
ATTORNEY GENERAL, et al.
That was a terrible decision. She joined the racists and paved the way for them to throw out the entire law. She is getting too senile to be there but won’t admit it.
Her decision to remain on the court and leave open the possibility that a republican will get the presidency and change the court from a 5:4 to a 6:3 is the height of selfishness and irresponsibility.
Get a clue woman.
September 2nd, 2013 at 7:18 am
Justice in America is pretty much for sale and the law, rules and evidence mean almost nothing.Prima facie evidence in the form of many 5-4 decisions demonstrates to the American people how “justice” really works.
Friendships and fraternity, might and resources almost always beat out law, facts and evidence. As further evidence to prove that justice is broken, see the 5-4 decision in Caperton v. A. T. Massey Coal Corp.
How any collective body with that much education, life and legal experience would come down on the side of a judge (Brent Benjamin) who benefited from $3 million dollars in campaign contributions, refused a request to recuse himself, saying he had no personal financial stake in the outcome of the case and then cast the deciding vote to overturn the verdict, thus ruling for Massey Coal Corp. is beyond anyone’s comprehension.
The point is how in the world could the US Supreme Court rule 5-4 on what should have been a 9-0 decision?
That is why the decision by this stupid self center, senile bitch is insane. It is obvious that the right will try anything to hold on to power. She is on the bench and knows that STARK is bought and paid for and yet she is willing to take that chance with America’s future.
September 2nd, 2013 at 7:20 am
I agree with you Robert,TM. Ginsburg is way pass her time, But like most self-absorbed people she is all about her.
September 2nd, 2013 at 7:22 am
The only ones agreeing with Ginsburg are the republicans. They are rooting for this egotistical fool.
September 2nd, 2013 at 7:23 am
I think you people are over reacting. She will retire from the court before the end of Obama’s term. 100% guaranteed.
September 2nd, 2013 at 7:25 am
Carol, I think so too. I want a balanced court and Obama needs the chance to replace Ginsburg with another liberal. I would prefer a moderate liberal, but Obama isn’t going to seek my opinion.
I still think Elizabeth Warren has the inside track.
September 2nd, 2013 at 7:27 am
Linda, I like Warren she would be a great justice, but that’s not going to happen. She’s already 64 and still only in her first year as a US senator.
Obama needs to follow the republican lead on this and appoint a young liberal person to the court.
September 2nd, 2013 at 7:36 am
Leave her alone the woman is 80. Of course there is some senility there. But she will do the right thing next year.
September 2nd, 2013 at 7:39 am
Steve Says:
September 1st, 2013 at 11:11 am
Damn, when I read what you wrote Doug. All I could say was WTF?
——————————————————-
Steve when I read Doug, I thought that Michelle must still be allowing him access to her sources.
September 2nd, 2013 at 7:50 am
As Robert, TM said that Shelby County v. Holder decision paved the way for the bigots on the court to strike down the voting rights act.
September 2nd, 2013 at 7:53 am
Thanks for the article Michelle, it answered many questions I have about her. I must agree that it is time she stepped down. The nation needs to be assured that the right wont get the chance to fuck us up even more.
September 2nd, 2013 at 7:55 am
All one has to do is to look at what the republicans will do if they have control over the branches of government of a state to know that they will enact any draconian law as long as they have the votes.
She will condemn women to back room abortions and OTWs to a return to slavery. The woman needs a shrink.
September 2nd, 2013 at 7:56 am
She’ll stay on until Obama’s last few weeks as prez then step down to allow Obama to replace her with a likeminded activist.
September 2nd, 2013 at 7:58 am
To those of you who think she will have the decency and common sense to step down and allow Obama to name a replacement, hopefully that will be. Our continued freedom depends on it.
September 2nd, 2013 at 8:00 am
Robert,TM, I agree with your thoughts about when Ginsberg will retire, she’s just occupying the seat on the court until another ideological twin can be seated on the court.
I thought the purpose for life time appointments to the Supreme Court was so that politics wouldn’t play a part in the justices decisions. The English Supreme Court decisions are at least subject to the British parliament.
America’s Supreme Court decisions aren’t subject to any other authority in America, Term limits are definitely needed for Supreme Court Justices.
Parliamentary sovereignty is a principle of the UK constitution. It makes Parliament the supreme legal authority in the UK, which can create or end any law.
Information from http://www.parliament.UK
September 2nd, 2013 at 8:02 am
I hope you people are guessing correctly, but doubt it. This woman seems much too self absorbed. I just hope the GOP doesn’t get the win in 2016, that’s the only way to be safe from the right take over of the court.
The dems are pathetic and can always be counted on to lose presidential elections. I just hope you right wingers keep saying the crazy stuff you’ve been saying. It delivered the win to obama in 2012 and could keep GOP out of the White House in 2016.
September 2nd, 2013 at 8:05 am
STARK are a bunch of wildly incompetent BAPF republican appointees. They show what they will do for the money every time they vote.
September 2nd, 2013 at 8:06 am
I agree Ernest, they should be removed.
September 2nd, 2013 at 8:08 am
You fucking nigger lovers how bout kagan? y’know, the only one that had never ben a judge in her life?
seems like that oughta be a bit of a trip in her path to run all of our lives to the ground? how bout the fact that we live in a 55-60% protestant country yet there is not one of us one the whole supreme court?
nor one southerner but there’s 4 jews, 1.4% of the country for the record
September 2nd, 2013 at 8:08 am
We need limits on how long Supreme Court Justices are allowed to stay. Lifetime is way too long.
September 2nd, 2013 at 8:09 am
The court is too liberal. I think that it’s quite dangerous to have such a politicised supreme court.
September 2nd, 2013 at 8:10 am
An activist court is neither liberal or conservative. It is a court who believes they can imagine up their own power without legislation.
Prime examples of activism in the Supreme Court includes Roe v Wade, Griswold v. Connecticut, Lochner v. New York, and Dred Scott v. Sanford
September 2nd, 2013 at 8:11 am
Dutch, Too liberal????
It is majority conservative….and the conservatives are the activists.
September 2nd, 2013 at 8:11 am
Dutch, Have you been under a rock or something? Ever heard of “citizens united” how about overturning key provisions of the voting rights act?
Obama’s puppies???? Give me an F’ing break.
September 2nd, 2013 at 8:12 am
Dutch, this is cognitive dissonance. You are expressing a belief in something which is not so.
September 2nd, 2013 at 8:14 am
Perry, it’s just like how every liberal quotes Jefferson and says they love America as they spit on ol’ Glory and burn her whatever’s convenient at the time, the march toward absolute Marxism must continue
September 2nd, 2013 at 8:15 am
As an aside:
Justice Ginsburg, maybe the Egyptians should have used our Constitution as the basis for forming their new (and recently failed) republic?
“I would not look to the U.S. Constitution, if I were drafting a constitution in the year 2012. I might look at the constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, have an independent judiciary. It really is, I think, a great piece of work that was done.” – Ginsburg
Of course she was completely correct when she said “If the people don’t care, the best constitution in the world won’t make any difference,” – I just wish she cared a bit.
September 2nd, 2013 at 8:16 am
Didn’t Ginserb tell another country not to use our constitution as a basis because she didn’t like the rights.
September 2nd, 2013 at 8:17 am
John#26, “…the march toward absolute Marxism must continue”
“You shall not pass!” – Gandalf
September 2nd, 2013 at 8:18 am
The only activism on the supreme court comes from the left, MS. Ginsberg.
September 2nd, 2013 at 8:19 am
Perry#27, awww if only if only
I fear its gotta get worse before it gets better, but I think most of us realize this welfare/nanny state cannot go on forever
the only question is will the world survive the collapse?
September 2nd, 2013 at 8:20 am
John, Well I’ll see you in Galt’s Gulch then.
September 2nd, 2013 at 8:23 am
I get the message Robert,RT. It’s about time.
September 2nd, 2013 at 8:24 am
George,WN, How do you figure? or are you just blowing smoke?
September 2nd, 2013 at 8:26 am
She argues that the “Voting Rights Act of 1965″ is an example of activism from the right.
“The Act established extensive federal oversight of elections administration, providing that states and local governments with a history of discriminatory voting practices could not implement any change affecting voting without first obtaining the approval of the United States Attorney General or a three-judge panel of the District Court for D.C., a process known as preclearance”
“On June 25, 2013, the Supreme Court struck down Section 4(b) of the Act as unconstitutional. The Court reasoned that the coverage formula conflicts with the constitutional principles of federalism and “equal sovereignty of the states” because its disparate treatment of the states is “based on 40 year-old facts having no logical relationship to the present day” and thus is unresponsive to current needs.”
http://en.wikipedia.org/wiki/Voting_Rights_Ac…
September 2nd, 2013 at 8:26 am
She is 80 years old. No doubt senile, and really has no business making decisions that affect the country. Put her in a nursing home and let her expire in peace.
September 2nd, 2013 at 8:27 am
Regressives try to hold back freedoms, in my opinion, with the biggest one being gay marriage. One day, it will be legal in every state…hopefully sooner than later.
September 2nd, 2013 at 8:36 am
Allen, Do you mean just like president reagan was?
September 2nd, 2013 at 8:37 am
Jon, Yep…Reagan was senile. BUT, he really couldn’t “vote” for anything that swayed the entire nation without congress weighing in.
The ACA is a prime example (I think that vote was 5-4 ……one lousy vote)
September 2nd, 2013 at 8:38 am
Stephen, No, he was just the Commander in Chief.
September 2nd, 2013 at 8:40 am
Stephen, What are you talking about? He signed the order breaking the air traffic controllers union starting the war on the middle class and his trickle down policies were the ruin of this nation.
They started the propaganda for the right that we should give special tax breaks to the rich so they can give the middle class jobs. What a crock?
September 2nd, 2013 at 8:41 am
Allen, Could it be that you are a discriminatory Asshole? I’m her age and I’m more politically acute and legislatively informed than I’ve ever been!
So we just take our GERITOL and keep on chugging! lol So, get off the age thing…it’s insulting.
September 2nd, 2013 at 8:43 am
Susan#37, In less than 20 years, certainly.
September 2nd, 2013 at 8:44 am
Kent, I sure hope we will get there.
September 2nd, 2013 at 8:45 am
Pearl, look at it this way: People graduating from High School now will be voting then and unless they are being sent to one of those Konservative Khristian aKademies they are not as skeered of LGBTs as the generation now dying out have been.
September 2nd, 2013 at 8:46 am
Kent#45, in the states that ban homosexual “marriage” we do go to seminaries and Christian schools my bud, don’t count yer chickens
September 2nd, 2013 at 8:47 am
Where is the ‘Yes, but neither conservatively or liberally’ option? I realize that corporatism and a general lack of civil rights (i.e., corporate personhood, strip searching on arrest for anything, gay marriage) are generally found on the right, but I’d hardly call them ‘conservative’(much like most Republicans aren’t conservative, except socially).
September 2nd, 2013 at 8:48 am
Yes, this is the most activist court, but not left or right leaning, instead leaning towards corporatism of our govt.
More money inserted into politics, less regulation, more corporate handouts, and generally making it easeir to make corporate profits and use those profits to control the govt, and then the govt uses the private sector to take away your rights via censorship and spying.
I guarantee that I will not die in this country because I can’t live some place that puts profits above everything else.
September 2nd, 2013 at 8:49 am
John#46, There are less and less Christians that support denying gays human rights. In 20 years, it will be legal in all 50 states. I have not doubt.
September 2nd, 2013 at 8:49 am
The primary job of SCOTUS is to overturn laws. They do this infrequently. Instead ofactivist they should be ccalls moribund.
September 2nd, 2013 at 8:50 am
Ginny failed to mention the Obamacare ruling. That was the most harmful decision to this nation that this court has issued.
September 2nd, 2013 at 8:50 am
The Supreme Court should only be used to uphold the law according to the Constitution and not for political activism…there also needs to be limits on the time a Justice serves there as well! All else is BS!
September 2nd, 2013 at 8:53 am
Look at how the ignored states rights to hand the election to Bush when it should have gone to the electoral college. Look at how they split the milita and the right to bear arms in the 2nd amendment. Look at how they say that money is speech but that assembling to peacfully petition is only speech in designated zones.
Look at how they say corporations are persons when they cannot be jailed drafted or even have to die. Look at how they say a government entitly can take private property from one person to give it to another person. They are so conservative they are returning the country to the sort of government structure it enjoyed under George III.
September 2nd, 2013 at 8:53 am
Supreme Court Is ‘One of the Most Activist in History,’….INDEED!!! ObamaCare should have been tossed out….The Supreme Court has Thrown our Constitution out the virtual window
September 2nd, 2013 at 8:54 am
Talk about activists, this little Commie has stained the scotus bright red!
September 2nd, 2013 at 8:55 am
Vance, LOL. If Obamacare had been unconstitutional it would have reduced the value of the constitution to a piece of excrement
September 2nd, 2013 at 8:55 am
She’s senile and needs to go.
September 2nd, 2013 at 8:56 am
That is not what activist courts are you half dead liberal old biddy. Activist courts are judges who instead of following the constitution feel they know what the founders had in mind.
BTW she spends more time sleeping on the job than Homer Simpson and should be forced to retire.
September 2nd, 2013 at 8:57 am
The Supreme Court is filled with liars and crooks, regardless if their Conservative or Liberal, but I’m not certain if you call these high-bounders activists.
September 2nd, 2013 at 8:58 am
the Court is too activist, period. not too conservative or too liberal, just too willing to bend and even break the principles behind the balance of powers.
checks and balances are there for a reason, and each branch these days seems to think they can freelance without being subject to the other branches.
that said, using ‘readiness to overturn legislation’ as a measure of activism is not appropriate at all – part of the checks and balances is to have a Court that is ready to overturn legislative and regulatory overreach.
their hesistation to do so is how we have arrived at the bloated mess that is our federal government and body of federal law.
September 2nd, 2013 at 9:05 am
Gary when you learn to punctuate a sentence correctly, I will consider your opinion. Try a capital every now and then.
The Court for your information is supposed to decide what is Constitutional or not. Only an idiot would think they could a bunch of men to decide fairly what is right rather than what is in their own best interest or those they answer to.
But then what would one expect from and idiot that is too lazy to bother capitalizing their opinions in a sentence. So when you mentioned “legislative and regulatory overreach,” I thought to give you some slack because you were making sense, then you showed your lack of attention to detail.
September 7th, 2013 at 4:03 pm
I’m not sure where you’re getting your information, but good topic.
I needs to spend some time learning more or understanding more.
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