What we can learn from an otherwise boring Supreme Court ruling

 

A legal case about a statute regulating deadlines by which lawsuits must be filed sounds lackluster, except for those involved (and maybe even for them). But law professor Orrin Kerr extracted a nugget of revelation from it that otherwise might have been largely overlooked.

Justice Ruth Bader Ginsburg recently gave an address on the role of dissenting opinions that included a remarkable explanation for her dissent last term in Ledbetter v. Goodyear Tire & Rubber. That case involved a statute regulating when discrimination claims must be filed; the Supreme 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.”

Loaded statement there. As the article points out, “what business does Justice Ginsburg have trying ‘to propel legislative change?”

Let a justice with a conservative reputation say that and you’d hear about it all over the media. But this WSJ piece is the only place I’ve seen Ginsburg’s words scrutinized.

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.

Kerr makes a good argument from logic that this judicial activism contradicts Ginsburg’s own warnings in the past that lawmakers (in the legislative branch) and judges (in the judiciary branch) should keep out of each other’s assigned duties.

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 OK for her as a Supreme Court justice to try to influence the outcomes of future legislation?

It’s not, so this is a good question.

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?

As Kerr concludes, you can’t have it both ways.

The justices are speaking out publicly a lot more these days. They are experts at addressing arguments. It would be most interesting to hear some responses to this one.