“Bush v. Gore Was In A Class Of One” – An Evening with Justice Ginsburg

This evening I had the opportunity to attend a dinner reception featuring Justice Ruth Bader Ginsburg. During the course of a conversation moderated by Professor Suzanne Reynolds from Wake Forest Law School -- which included time for Q&A with the audience -- the Justice spoke with remarkable frankness about her life at the Court. Here are some of her most interesting points:

-- On the shrinking docket of the Supreme Court (i.e. the Court is consenting to hear fewer and fewer cases each year): This is a good development. Having extra time to hone the opinions gives the Justices more time to achieve consensus on the cases they do hear. We can notice that the Court is not issuing the same number of confusingly split opinions that they once were, because they are taking more time to craft compromise language that enables everyone to get on board. The end result is less dissenting and concurring, and fewer instances where justices will write things like, I agree with Parts 1, 5, and 6 of the majority opinion but write separately to dissent as to part 2 and concur as to part 4.

-- On the Supreme Court’s cert pool (i.e. why they choose to hear the cases they do): The Supreme Court has made a decision that it is not an error correction court. There are plenty of lower courts doing a fine job taking care of the everyday administration of justice in this country, and we do not need yet another layer of correction. Instead, the Court has chosen to prioritize conflict resolution. The justices think it is important to have the law be uniform across the country. So they are looking to grant certiorari on cases where the federal circuit courts have split with each other or split with the state courts.

-- On Bush v. Gore and the politicizing of the Court: Bush v. Gore was completely unique – in a class of one, as she put it. It was an exercise in endurance because of its short time frame – cert was granted one day, briefs were due the next day, the following day was oral arguments, and the decision came out the day after that. It is a telling fact that, in the years since BvG, the Court has never once cited it. It is essentially limited to that particular situation and those particular facts. She thinks the Justices will not allow politics to be the basis of their decisions under normal circumstances. BvG was a special case. (Is this a tacit admission that it WAS a politically motivated decision? Lily couldn’t tell!)

-- On Hillary Clinton being the first woman to mount a serious campaign for President: "Brava!"

-- On Justice Scalia: He is one of her closest friends on the Court. The Ginsburg and Scalia families have a tradition of spending New Years together. The two Justices share a love of opera. She described J. Scalia as a “wonderful raconteur of stories and a great teller of jokes.”

--When asked what is the single biggest threat to the Rule of Law in our country, Justice Ginsburg replied immediately that it is fear -- fear engendered by terrorism and the tragedies of 9/11. She said that if we allow this fear to condone unwarranted intrusions on civil liberties and (as she put it) "encourage the government to spy on us," we will fundamentally change who we are as Americans and our enemies will have completely triumphed.

I am scheduled to attend a CLE featuring Justice RBG tomorrow, along with many female judges and justices from across the country. I’ll attempt to follow up here on OR with more details about what they have to say! Stay tuned!