Stanford, Calif., September 24, 2013 - U.S. Supreme Court Justice Ruth Bader Ginsburg spent last Tuesday at Stanford Law School to help students, faculty and staff celebrate Constitution Day. Justice Ginsburg, who herself is celebrating two decades on the nation’s highest court, met with students, dined with faculty and filmed a one-on-one conversation with Dean M. Elizabeth Magill. The Justice capped her visit by offering her thoughts on the Court’s most recent term to a packed crowd at Dinkelspiel Auditorium. Click here to view a photo essay of the Justice’s visit to SLS.
Several law students met with Justice Ginsburg for a roundtable discussion about a wide variety of topics ranging from federal Indian law to how the Justice interacts with the Court’s other female justices. Justice Ginsburg indicated that she expects the Court to continue taking on First Amendment cases. She also predicted that the Court will deal with issues of privacy in the digital age and cases involving technology and science.
“All of us … were very excited and nervous and pretty much just in awe to meet her in person and be able to chat with her,” second-year SLS student Susie Choi stated. Choi added that Justice Ginsburg “has a very good sense of humor.”
And if students were captivated by Justice Ginsburg’s presence, the faculty had a similar reaction. Describing the demeanor of those who attended the faculty lunch, Assistant Professor of Law Shirin Sinnar observed that “even that room of people was awestruck by her presence.” Professor Sinnar also expressed how much she appreciated the Justice’s visit, noting that “in the Court and in her life, Justice Ginsburg has always been a champion for justice.”
William Nelson Cromwell Professor of Law Jane Schacter asked Justice Ginsburg how the Court has changed during her tenure and found the Justice’s response to be “very reflective and thoughtful.” Justice Ginsburg indicated that the departure of Justice Sandra Day O’Connor, the Court’s first female justice, was felt acutely, but that the arrivals of Justices Sonia Sotomayor and Elena Kagan were welcome developments.
According to Professor Schacter, Justice Ginsburg was candid about Court decisions with which she disagrees, but her extraordinary regard for the Court was unmistakable. Justice Ginsburg “always made clear her great respect and affection for the Court as an institution,” said Professor Schacter.
Senior Lecturer in Law Allen Weiner asked Justice Ginsburg if she and her colleagues on the Court remain interested in visiting foreign courts and meeting with judges in other nations. Justice Ginsburg confirmed that the justices are still very committed to studying how foreign judicial systems function. In fact, Justice Ginsburg mentioned, she was scheduled to travel to Canada and The Hague after leaving SLS.
For many in the SLS community, though, the highlight of Justice Ginsburg’s visit was her afternoon lecture. Taking to the podium for nearly an hour, Justice Ginsburg again assumed the role of instructor to offer her unique perspective on some of the Court’s most significant recent cases.
Dean Magill, who once served as a law clerk to Justice Ginsburg, introduced the Justice by observing the breadth of her experience as an advocate, professor and judge. Click here to read Dean Magill’s introductory remarks.
“Her life’s work has been to redeem, to make good on, the full promise of the Constitution’s protections,” Dean Magill declared. “Justice Ginsburg’s life’s work has changed the lives of every generation in this room, and in this country.”
Dean Magill also acknowledged that Justice Ginsburg repeatedly encountered longstanding biases against female lawyers early in her career. “She was a woman of formidable talents, and, yet, those talents were not recognized because of the deeply embedded views about the appropriate roles and capacities of women,” Dean Magill said. “In her own generation, Justice Ginsburg was a pioneer, an example of what women were capable of doing in realms previously closed to them. And she was repeatedly victorious.”
Delving further into some of Justice Ginsburg’s victories, Dean Magill cited the Justice’s “brilliant” strategic decisions in challenging laws that discriminated on the basis of gender. “She argued six cases in the Supreme Court, winning every one where the Court reached the merits, and in the process she established the modern law of equal protection as it relates to equality between the sexes.”
Stepping to the podium to review highlights of the Court’s “both heady and hefty” recent term, Justice Ginsburg began by mentioning the relatively high number of dissents that the justices chose to explain from the bench, a practice dissenting justices engage in infrequently. She noted that she herself provided many of those explanations from the bench in the last term of the Court.
Justice Ginsburg then turned to Fisher v. University of Texas at Austin, where the Court examined the Texas school’s affirmative action plan for undergraduate student admissions. As Justice Ginsburg summarized for the audience, Texas had a law that guaranteed University admission to any student graduating in the top ten percent of any Texas high school. In addition to this Top Ten Percent law, however, University admissions officials could also consider race as a “plus factor” for applicants ranking below the top ten percent.
The lower courts upheld the plan, but the Supreme Court sent the case back to the lower courts for another look. Justice Ginsburg dissented and indicated that she would not have sent the case back.
The Justice told the audience in Dinkelspiel Auditorium that “state actors … need not be blind to the still-lingering everyday evident effects of centuries of law-sanctioned inequality.”
Justice Ginsburg then recounted the two same-sex marriage cases—United States v. Windsor and Hollingsworth v. Perry. In Windsor, the Court scrutinized Section 3 of the federal Defense of Marriage Act, which defined “marriage” for federal purposes as a legal union between one man and one woman. The Court struck down Section 3, a barrier to same-sex couples who wish to marry, as an unconstitutional deprivation of the Fifth Amendment’s guarantee of equal liberty. In discussing the Court’s opinion with the audience, Justice Ginsburg asserted that “congressional animosity to a politically unpopular group does not justify differential treatment.”
In Hollingsworth, meanwhile, the Court took on Proposition 8, the California law that only recognizes as a legal marriage for state law purposes a union between one man and one woman. Because the history of the case was so critical to the Court’s decision, Justice Ginsburg detailed the background of the case at some length.
After the State of California decided not to defend Proposition 8 in court, the original sponsors of the ballot measure decided to defend it themselves, Justice Ginsburg explained. Opponents of Proposition 8 challenged the sponsors’ legal right to do so, but ultimately the California Supreme Court and the U.S. Court of Appeals for the Ninth Circuit determined that the sponsors could defend Proposition 8 in court.
While the Court in Windsor reached the substance, or merits, of the legal issue at hand, the Court in Hollingsworth took the procedural route. According to Justice Ginsburg, the Court determined that the sponsors of Proposition 8 did not have constitutional standing to argue their case in the federal courts. For this reason, Justice Ginsburg told the audience, the Court vacated the Ninth Circuit’s opinion without determining whether Proposition 8 is constitutional.
In presenting these two cases to the audience, Justice Ginsburg deftly clarified how the Court could decide a highly contentious matter on the merits in one case, yet dispose of an equally contentious matter on procedural grounds in another case. But she saved her most robust comments for yet another contentious case.
In Shelby County v. Holder, the Court invalidated Section 4 of the Voting Rights Act. Section 4 contained a formula, better known as the “coverage formula,” by which certain jurisdictions with a history of racial discrimination in voting practices must pre-clear changes to their elections laws with the federal government. The Court determined that the coverage formula was based on old data and must be updated. Justice Ginsburg joined fellow Justices Breyer, Kagan and Sotomayor in dissent.
Justice Ginsburg vigorously defended the Voting Rights Act to the audience as the “foremost and most successful civil rights legislation.” The Justice contended that when Congress renewed the Voting Rights Act in 2006, it did so after thorough deliberation and with considerable information at hand. In Justice Ginsburg’s view, Congress’ decision to re-authorize the Act, including the existing coverage formula, was “a rational means to achieve what was once the subject of a dream—the equal citizenship stature of all in our polity, a voice to every voter in our democracy undiluted by race.”
Furthermore, Justice Ginsburg proposed, the voluminous case record “shows … that the formula continues to identify jurisdictions” that inappropriately restrict voting rights. Justice Ginsburg expressed her concerns about “second-generation barriers” to voting and about the current Congress’ willingness to update the coverage formula.
After her appraisal of the Court’s recent term, Justice Ginsburg took questions from the audience. When asked how the justices remain friendly when their work can trigger serious disagreement, Justice Ginsburg responded that “[w]hat holds us together is that we revere the institution for which we work. We know that we must maintain a high level of collegiality for that to happen.” She added that disappointments and frustrations are only momentary.
The Justice also encouraged students, particularly those considering public interest careers, to find and follow their passions. “You’ve grown old enough to care about something important, but the key thing is that, as lawyers, you will have a skill that enables you to make things better than they might be without your assistance,” she advised. “Find something outside yourself to pursue, and then you will be a true professional.”
Justice Ginsburg also signaled her reservations about televising oral arguments held at the Court. “The problem … is that you’re only seeing a relatively small part of the appellate process,” the Justice said. Viewers would miss the “reams of information that [the justices] absorb” before coming to oral argument. Justice Ginsburg emphasized that the attorneys’ written work is actually more important than oral argument and worried that suggesting otherwise would convey a “false picture” to the public.
Finally, Justice Ginsburg addressed the increasingly hostile nature of the judicial confirmation process in the U.S. Senate. The Justice reminded the audience that she was confirmed by a vote of 96-3 and, despite being nominated by a Democratic president, two of her strongest supporters in the Senate were Republican stalwarts Orrin Hatch and Strom Thurmond. Justice Ginsburg concluded by calling for a return to “the civility and bipartisan spirit” of the early 1990s.
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