Posted by Orin Kerr:
Justice Ginsburg Speaks:
http://volokh.com/archives/archive_2007_05_27-2007_06_02.shtml#1180630245
In Thursday's [1]New York Times, Linda Greenhouse had a very
interesting essay on how outspoken Justice Ginsburg has become in her
dissents, particularly in cases that touch on the Supreme Court's role
in the political system:
The justice�s acquaintances have watched with great interest what
some depict as a late-career transformation. �Her style has always
been very ameliorative, very conscious of etiquette,� said Cynthia
Fuchs Epstein, the sociologist and a longtime friend. �She has
always been regarded as sort of a white-glove person, and she�s
achieved a lot that way. Now she is seeing that basic issues she�s
fought so hard for are in jeopardy, and she is less bound by what
have been the conventions of the court.�
Some might say her dissents are an expression of sour grapes over
being in the minority more often than not. But there may be
strategic judgment, as well as frustration, behind Justice
Ginsburg�s new style. She may have concluded that quiet
collegiality has proved futile and that her new colleagues, Chief
Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., are
not open to persuasion on the issues that matter most to her.
I'm just speculating, of course, but my tentative guess is the same
as Debra Ness's: "She�s sounding an alarm and wants people to take
notice." It's the same reaction I had to [2]Ginsburg's warning about
the Term back in January.
The question is, why? One theory is that Ginsburg's goal is the same
as Justice Blackmun's near the end of his career: to influence the
outcome of the next Presidential election by rallying the troops. In
his Planned Parenthood v. Casey dissent, in 1992, Justice Blackmun
seemed to be speaking to voters: "I am 83 years old," Blackmun wrote.
"I cannot remain on this Court forever, and when I do step down, the
confirmation process for my successor well may focus on the issue
before us today." Get the hint? A year later, Clinton was elected, and
within two years Blackmun and Justice White had resigned and been
replaced with Ginsburg and Stephen Breyer. This is just speculation,
obviously, but I wonder if Ginsburg has Blackmun's efforts in mind.
(Of course, if true, that doesn't mean Ginsburg herself is considering
retiring after the next election; she may just want to influence the
political system to increase the chances that future colleagues share
her views.)
References
1.
http://www.nytimes.com/2007/05/31/washington/31scotus.html?_r=1&oref=slogin
2. http://volokh.com/posts/1170108991.shtml
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