Oral dissents give justice new voice - Ginsburg's gloves come off in new Supreme Court
Oral dissents give justice new voice - Ginsburg's gloves come off in new Supreme Court
By Linda Greenhouse
Copyright © 2007, Chicago Tribune
Published May 31, 2007
WASHINGTON -- Whatever else may be said about the Supreme Court's current term, which ends in about a month, it will be remembered as the time when Justice Ruth Bader Ginsburg found her voice, and used it.
Both in the abortion case the court decided last month and the discrimination ruling it issued on Tuesday, Ginsburg read forceful dissents from the bench. In each case, she spoke not only for herself but also for three other dissenting colleagues, Justices John Paul Stevens, David Souter and Stephen Breyer.
But the words were clearly her own, and they were both passionate and pointed. In the abortion case, in which the court upheld the federal Partial-Birth Abortion Ban Act seven years after having struck down a similar state law, she noted that the court was now "differently composed than it was when we last considered a restrictive abortion regulation." In the pay discrimination case, she summoned Congress to overturn what she called the majority's "parsimonious reading" of the federal law against discrimination in the workplace.
To read a dissent aloud is an act of theater that justices use to convey their view that the majority is not only mistaken, but profoundly wrong. It happens just a handful of times a year. Justice Antonin Scalia has used the technique to powerful effect, as has Stevens, in a decidedly more low-key manner.
The oral dissent has not been, until now, Ginsburg's style. She has gone years without delivering one, and never before in her 15 years on the court has she delivered two in one term. In her past dissents, both oral and written, she has been reluctant to breach the court's collegial norms. "What she is saying is that this is not law, it's politics," Pamela Karlan, a Stanford law professor, said of Ginsburg's comment linking the outcome in the abortion case to the fact of the court's changed membership. "She is accusing the other side of making political claims, not legal claims."
Justice 'sounding an alarm'
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, a 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 that 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 Ginsburg's new style. She may have concluded that quiet collegiality has proved futile and that her new colleagues, Chief Justice John Roberts and Justice Samuel Alito, are not open to persuasion on the issues that matter most to her.
Alito, of course, took the place of Justice Sandra Day O'Connor, with whom Ginsburg formed a deep emotional bond, although they differed on a variety of issues. And Roberts replaced Chief Justice William Rehnquist, with whom Ginsburg often disagreed but maintained a relationship that was at times surprisingly productive.
For example, in 1996, over Scalia's vigorous dissent, the chief justice gave Ginsburg his vote in a decision holding that the Virginia Military Institute's men-only admissions policy was unconstitutional. In 2003, they made common cause in a case that strengthened the Family and Medical Leave Act. When Ginsburg criticized a Rehnquist opinion, she did so gently; today's adversary could be tomorrow's ally.
If there has been any such meeting of the minds between Ginsburg and her new colleagues, it has not been evident. She may have concluded that her side's interests are better served by appealing not to the court's majority but to the public. "She's sounding an alarm and wants people to take notice," said Debra Ness, president of the National Partnership for Women & Families, an advocacy group that focuses on the workplace.
More will be listening
Goodwin Liu, a law professor at the University of California-Berkeley, was one of Ginsburg's law clerks when the court decided the 2000 election case, the bitterly divided Bush vs. Gore decision, from which she dissented. Even during that freighted period, Liu said, "I was struck by how much of an institutional citizen she was, how attuned to the wishes of her colleagues and to not giving offense."
Liu said that when he read the dissent on Tuesday, it occurred to him that in recounting the workplace travails of the plaintiff, Lilly Ledbetter, Ginsburg was also telling a version of her own story. "Here she is, the one woman of a nine-member body, describing the get-along imperative and the desire not to make waves felt by the one woman among 16 men," Liu said. "It's as if after 15 years on the court, she's finally voicing some complaints of her own."
Another of the justice's friends, Professor Judith Resnik of Yale Law School, noted that throughout her legal career, Ginsburg has been deeply concerned about questions of access to the courts and the remedial powers of federal judges, themes she has explored in both majority and dissenting opinions.
"Those of us reading not just the grand-slam cases but the quieter ones have heard her voice," Resnik said. She added, "Now that the stakes are going up, more people will be listening."
By Linda Greenhouse
Copyright © 2007, Chicago Tribune
Published May 31, 2007
WASHINGTON -- Whatever else may be said about the Supreme Court's current term, which ends in about a month, it will be remembered as the time when Justice Ruth Bader Ginsburg found her voice, and used it.
Both in the abortion case the court decided last month and the discrimination ruling it issued on Tuesday, Ginsburg read forceful dissents from the bench. In each case, she spoke not only for herself but also for three other dissenting colleagues, Justices John Paul Stevens, David Souter and Stephen Breyer.
But the words were clearly her own, and they were both passionate and pointed. In the abortion case, in which the court upheld the federal Partial-Birth Abortion Ban Act seven years after having struck down a similar state law, she noted that the court was now "differently composed than it was when we last considered a restrictive abortion regulation." In the pay discrimination case, she summoned Congress to overturn what she called the majority's "parsimonious reading" of the federal law against discrimination in the workplace.
To read a dissent aloud is an act of theater that justices use to convey their view that the majority is not only mistaken, but profoundly wrong. It happens just a handful of times a year. Justice Antonin Scalia has used the technique to powerful effect, as has Stevens, in a decidedly more low-key manner.
The oral dissent has not been, until now, Ginsburg's style. She has gone years without delivering one, and never before in her 15 years on the court has she delivered two in one term. In her past dissents, both oral and written, she has been reluctant to breach the court's collegial norms. "What she is saying is that this is not law, it's politics," Pamela Karlan, a Stanford law professor, said of Ginsburg's comment linking the outcome in the abortion case to the fact of the court's changed membership. "She is accusing the other side of making political claims, not legal claims."
Justice 'sounding an alarm'
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, a 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 that 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 Ginsburg's new style. She may have concluded that quiet collegiality has proved futile and that her new colleagues, Chief Justice John Roberts and Justice Samuel Alito, are not open to persuasion on the issues that matter most to her.
Alito, of course, took the place of Justice Sandra Day O'Connor, with whom Ginsburg formed a deep emotional bond, although they differed on a variety of issues. And Roberts replaced Chief Justice William Rehnquist, with whom Ginsburg often disagreed but maintained a relationship that was at times surprisingly productive.
For example, in 1996, over Scalia's vigorous dissent, the chief justice gave Ginsburg his vote in a decision holding that the Virginia Military Institute's men-only admissions policy was unconstitutional. In 2003, they made common cause in a case that strengthened the Family and Medical Leave Act. When Ginsburg criticized a Rehnquist opinion, she did so gently; today's adversary could be tomorrow's ally.
If there has been any such meeting of the minds between Ginsburg and her new colleagues, it has not been evident. She may have concluded that her side's interests are better served by appealing not to the court's majority but to the public. "She's sounding an alarm and wants people to take notice," said Debra Ness, president of the National Partnership for Women & Families, an advocacy group that focuses on the workplace.
More will be listening
Goodwin Liu, a law professor at the University of California-Berkeley, was one of Ginsburg's law clerks when the court decided the 2000 election case, the bitterly divided Bush vs. Gore decision, from which she dissented. Even during that freighted period, Liu said, "I was struck by how much of an institutional citizen she was, how attuned to the wishes of her colleagues and to not giving offense."
Liu said that when he read the dissent on Tuesday, it occurred to him that in recounting the workplace travails of the plaintiff, Lilly Ledbetter, Ginsburg was also telling a version of her own story. "Here she is, the one woman of a nine-member body, describing the get-along imperative and the desire not to make waves felt by the one woman among 16 men," Liu said. "It's as if after 15 years on the court, she's finally voicing some complaints of her own."
Another of the justice's friends, Professor Judith Resnik of Yale Law School, noted that throughout her legal career, Ginsburg has been deeply concerned about questions of access to the courts and the remedial powers of federal judges, themes she has explored in both majority and dissenting opinions.
"Those of us reading not just the grand-slam cases but the quieter ones have heard her voice," Resnik said. She added, "Now that the stakes are going up, more people will be listening."
posted by Carlos T Mock at 8:09 AM
0 Comments:
Post a Comment
<< Home