Outside the Beltway

Ruth Bader Ginsburg Hints At Deep Divisions As Supreme Court Nears End Of Term

As the Supreme Court enters the final weeks of its term, Justice Ruth Bader Ginsburg hints at deep divisions and disappointment for people on the left.

Doug Mataconis · Monday, June 10, 2019 · 8 comments

We’ll have another opinion day at the Supreme Court this morning (click here for my preview of the “big” cases that remain undecided) and Justice Ruth Bader Ginsburg is hinting at some fairly serious divisions in the remaining opinions to come:

WASHINGTON — In 2012, as the Supreme Court was mulling the fate of President Barack Obama’s health care law, Justice Ruth Bader Ginsburg addressed the American Constitution Society, a liberal group.

“This term has been more than usually taxing,” she said.

Two weeks later, Chief Justice John G. Roberts Jr. joined Justice Ginsburg and the three other liberal justices to sustain a key provisionof that law — as an exercise of Congress’s power to impose taxes.

It may have been a coincidence. But Justice Ginsburg chooses her words with care, and lawyers and journalists have combed her public remarks for hints ever since.

On Friday, Justice Ginsburg gave a similar speech, this time at a judicial conference in New Paltz, N.Y. There was little in her remarks to hearten liberals.

She started by noting the most fundamental change at the court. “Justice Kennedy announced his retirement,” she said. “It was, I would say, the event of greatest consequence for the current term, and perhaps for many terms ahead.”

Justice Anthony M. Kennedy was a moderate conservative who occasionally joined the court’s liberal wing in cases on abortion, gay rights, affirmative action and the death penalty. His replacement, Justice Brett M. Kavanaugh, appears to be more conservative.

Justice Ginsburg seemed pleased by at least one aspect of her newest colleague’s work. “Justice Kavanaugh made history by bringing on board an all-female law clerk crew,” she said. “Thanks to his selections, the court has this term, for the first time ever, more women than men serving as law clerks.”

There was another reason to think Justice Ginsburg thinks well of Justice Kavanaugh. She was the senior justice in the majority in a major antitrust case against Apple, which gave her the power to assign the majority opinion. Such high-profile cases do not typically go to junior justices, but she picked Justice Kavanaugh.

In her speech, Justice Ginsburg gave an extended and largely neutral summary of what is probably the most important case of the term, Department of Commerce v. New York, No. 18-966. The court will decide whether the Trump administration may add a question on citizenship to the 2020 census.

It is, Justice Ginsburg said, “a case of huge importance.”
“Census Bureau analyses predicted that adding the question would depress the census response rate for noncitizen and Hispanic households, resulting in poorer census data,” she said, adding that evidence in the case undercut Commerce Secretary Wilbur Ross’s explanations for why he had decided to add the question.

Justice Ginsburg’s concluding comments seemed to foreshadow a closely divided case in which she will be on the losing side.

“Speculators about the outcome note that last year, in Trump v. Hawaii, the court upheld the so-called travel ban, in an opinion granting great deference to the executive,” she said, referring to a 5-to-4 decision in which the court’s four liberals dissented. “Respondents in the census case have argued that a ruling in Secretary Ross’s favor would stretch deference beyond the breaking point.”

Justice Ginsburg also touched on other important cases to be decided before the end of the month. One concerns a 40-foot cross honoring soldiers who died in World War I. At the argument in the case, American Legion v. American Humanist Association, No. 17-1717, a majority of the justices seemed inclined to reject the argument that the cross was an unconstitutional endorsement of religion.

On Friday, Justice Ginsburg called the cross a “towering monument” and quoted with seeming approval from an appeals court decisionrequiring its removal. “The Latin cross, the majority reasoned, is not a generic symbol of death,” she said, “it is the ‘pre-eminent symbol of Christianity,’ the ‘symbol of the death of Jesus Christ.'”

In that case, too, it would not be surprising if Justice Ginsburg found herself in dissent.

There are two other pending decisions “very high on the most-watched-cases list,” Justice Ginsburg said, referring to challenges to voting maps in North Carolina and Maryland that were designed to amplify the power of the political party in control of the state legislature.

Justice Ginsburg explained the basic problem. “Given modern technology,” she said, “a state legislature can create a congressional delegation dramatically out of proportion to the actual overall vote count. In North Carolina, for example, in the 2016 election, Republicans won 53 percent of the statewide vote, yet they won 10 of the 13 congressional seats.”

“However one comes out on the legal issues,” she continued, “partisan gerrymandering unsettles the fundamental premise that people elect their representatives, not vice versa.”

As in 2012, Justice Ginsburg’s remarks on Friday were at most suggestive. But she did indicate that many of the court’s remaining decisions are likely to be sharply divided.

The fact that the high-profile cases referenced above are likely to be closely divided hardly comes as a shock, of course. These are hugely important cases in each of the areas of law that they touch on and those are the kind of cases in which the differences in judicial outlook between the Court’s conservative and liberal wings become most apparent. It’s also generally the case that many of the cases handed down during the month of June end up being the cases on which the Court is most sharply divided. Part of the reason for this is the fact that those sharp divisions often mean a longer process for drafting majority, concurring, and dissenting opinions that often end up responding to each other. Another reason is the fact that these are the cases that the Court is often the most careful in deciding, especially since they often end up being cases that are likely to have a profound effect on politics and the law for years to come.

It’s also not surprising that Ginsburg would find herself on the losing side of more and more of these cases in the future. The retirement of Justice Anthony Kennedy last June, followed by the confirmation of Brett Kavanaugh last October, was inevitably going to mean that the balance of the court was going to shift to the right on the closely-decided cases. Previously Kennedy, who was at heart a conservative with a libertarian streak on social issues like LGBT rights, had been the center of the court, and before him it was Justice Sandra Day O’Connor who over time had arguably moved further to the left than Kennedy, was the balance of the Court and he often sided with the Court’s liberals. Now, the new center of the court appears to be Chief Justice John Roberts. While Roberts is not as far to the right as Justices such as Samuel Alito and Clarence Thomas, he is most assuredly to the right of Justice Kennedy. This means that the closely decided cases, such as the ones discussed by Ginsburg in her talk, are likely to be ones where the 5-4 majority is on the conservative side of the court. Whether that proves to be the case will take more than one term to figure out, of course, but we’ll definitely get an idea of where things are headed by the time June is over.

At the very least, though, if Ginsburg’s words are any indication then liberals should prepare themselves to be largely disappointed when it comes to the cases she was discussing. We could always see a surprise, of course, but the signals all indicate a court term that conservatives will consider to have been mostly a success.