Posted by Orin Kerr:
Justice Ginsburg and Legislative Independence:
http://volokh.com/archives/archive_2007_10_21-2007_10_27.shtml#1193284491
Justice Ginsburg recently [1]gave an address on the role of dissenting
opinions that included a remarkable explanation for her dissent last
Term in [2]Ledbetter v. Goodyear Tire & Rubber. Ledbetter involved a
statute regulating when discrimination claims must be filed; the Court
ruled 5-4 that the lawsuit in that case was filed too late. Justice
Ginsburg dissented, and she took the unusual step of reading her
dissent from the bench.
In her address, Justice Ginsburg explains that the purpose of her
dissent was "to attract immediate public attention and to propel
legislative change." She then explains how the other branches
responded:
Several members of Congress responded within days after the Court's
decision issued. A corrective measure passed the House on July 31,
2007. Senator Kennedy introduced a parallel bill, with 21
co-sponsors. The response was just what I contemplated when I
wrote: "The ball is in Congress� court . . . . to correct [the
Supreme] Court�s parsimonious reading of Title VII." But the fate
of the proposed legislation has been clouded. On July 27, the
Administration announced that if the measure "were presented to the
President, his senior advisors would recommend that he veto the
bill."
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.
To be clear, it's not newsworthy that Supreme Court Justices have
and are influenced by their personal policy preferences. That much is
human nature. But Justice Ginsburg is not saying that her own views
may color her view of what the law is. Nor is she simply acknowledging
her personal view that it would be good for Congress to amend the law
in a particular way (a position I tend to share). Rather, she 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.
This view seems hard to square with Justice Ginsburg's frequent
invocations of "judicial independence," the notion that legislators
should leave the judging to the judges. Justice Ginsburg has
frequently criticized legislators -- particularly conservatives -- who
have tried to influence the federal courts by regulating its
jurisdiction or closely scrutinizing appointees on political grounds.
According to Justice Ginsburg, these efforts threaten the
constitutional order because they involve legislative overreaching
into the sphere of the judiciary. See generally Ruth Bader Ginsburg,
Judicial Independence: The Situation of the U.S. Federal Judiciary, 85
Neb. L. Rev. 1, 7-13 (2006).
But shouldn't this be a two-way street? 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? I don't mean to be too
harsh, but I do find her position quite puzzling. Some might argue
that her view of her role really isn't surprising, and that we should
expect Justice Ginsburg to try to influence Congress this way. But if
that's true, doesn't it mean Justice Ginsburg's argument for judicial
independence falls flat and that legislators are justified in trying
to influence the decisions of the Court? Perhaps I'm just missing
something, but I'm not sure how you can have it both ways.
References
1. http://www.supremecourtus.gov/publicinfo/speeches/sp_10-21-07.html
2. http://www.supremecourtus.gov/opinions/06pdf/05-1074.pdf
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