Justice Ruth Bader Ginsburg has reached hero status among the left and in the Democratic Party. But this week, she has made it clear that she is not on board with their criticism of the Supreme Court, her colleagues or proposals to change the place.
“The court remains the most collegial place I have ever worked,” she said Wednesday night, as she answered questions from one of her former clerks, Neil Siegel, a law professor who runs Duke University’s D.C. Summer Institute on Law and Policy.
Ginsburg stood up for President Trump’s two nominees to the court, and earlier in the week told NPR that she opposed proposals popular with many Democratic presidential aspirants that would either impose term limits on members of the Supreme Court or expand the number of justices.
She said Wednesday night that she would like to see “patriots on both sides of the aisle” turn down the temperature on Supreme Court nominations. “My hope is that we will return to the way it once was,” when a “flaming feminist” like herself could be approved almost unanimously by the Senate.
That seems unlikely.
Because Ginsburg, unlike most members of the court, gives interviews and each summer recounts the court’s term at the Duke program, she can serve as something of a barometer of relations on the court following its usual rush of 5-to-4 decisions in late June.
She seemed relatively chill, perhaps because predictions of a calamitous term for the liberal wing of the court did not come to pass. Ginsburg was .500 on the two most important decisions of the term, and the court’s liberals often recruited conservative justices to prevail in some lesser cases.
Ginsburg was disappointed to be in the dissent of Chief Justice John G. Roberts Jr.’s majority opinion saying federal courts had no role in policing partisan gerrymandering. But she praised the court’s decision that said Commerce Secretary Wilbur Ross was “disingenuous” in saying why he wanted to put a question about citizenship on 2020 Census forms that go to all households. The court disallowed the question, which Ginsburg noted Census Bureau officials said would harm the accuracy of the endeavor.
Ginsburg’s recounting of the term could lend credence to a theory that the census case was a late-breaking decision.
In a speech in early June to judges and lawyers in New York — at a time when justices would know the outcome of decisions not yet announced — Ginsburg talked cryptically about the coming end of the term.
“Given the number of most watched cases still unannounced, I cannot predict that the relatively low sharp divisions ratio will hold,” she said. Liberals found that ominous.
But the justice was sunny when discussing the court’s work Wednesday evening.
“The takeaway is we agree considerably more often than we sharply divide,” she said.
Perhaps Ginsburg was affected by the recent passing of retired justice John Paul Stevens. Reflections on his death have inevitably mentioned his fierce independence — he was a Republican appointee who came to head the court’s liberal wing for years — and his collegiality.
Stevens had an unusual “combination of brilliance and humility,” Ginsburg said. “You don’t see those two characteristics together in many people.”
Siegel noted that President Gerald Ford had said he had looked for the best legal mind in the country before selecting Stevens in 1975. He suggested that may not be the criterion for more recent court nominations.
But Ginsburg pushed back gently. “I can say that my two newest colleagues are very decent and very smart individuals,” she said, referring to Trump’s choices of Justices Neil M. Gorsuch and Brett M. Kavanaugh.
Later, she invoked the pair when saying “there are a number of cases this term where we didn’t divide along so-called party lines.”
“Keen observers of what the court does will have noticed that I assigned an opinion this term to Justice Kavanaugh and two to Justice Gorsuch.” The chance to assign majority opinions is dictated by seniority, so Ginsburg has the power only when Roberts and the court’s longest-serving justice, Clarence Thomas, are on the other side.
Ginsburg never mentioned Kavanaugh’s explosive confirmation hearing, during which he denied accusations of a sexual assault when he was a teenager, and senators divided bitterly along party lines on whom to believe.
Instead, as she has before, Ginsburg noted that Kavanaugh “made history” by bringing on an all-female contingent of law clerks. As a result, and for the first time, more women than men held the prestigious jobs last term.
The justices often act as a family, disagreeing vehemently with one another but banding together against outsiders. Ginsburg reminded the audience that the justices shake hands before taking the bench.
“It’s a way of saying, ‘Yeah, you circulated a pretty nasty dissent yesterday,’ ” but we’re in this together. “There’s a lot of togetherness.”
The inevitable question came at the end, as it almost always does at a Ginsburg appearance.
How much longer? Siegel asked.
Ginsburg, 86, gave her usual answer: As long as she can do the job full steam. “I was okay last term; I expect to be okay next term, and after that we’ll just have to see.”
Ginsburg earlier had recounted one of her last conversations with Stevens, who retired at 90 and died at 99.
“My dream is to remain on the court as long as you did,” she told him. His immediate response, she said, was: “Stay longer!”