March 09, 2009

Ginsburg to Congress: Please Overturn Bartlett v. Strickland

Are we witnessing the precursor of Ledbetter II?  In a dissenting opinion in Bartlett v. Strickland Justice Ginsburg once again puts Congress on notice that the ball is in their court.  
"I join JUSTICE SOUTER’s powerfully persuasive dissenting opinion, and would make concrete what is implicit in his exposition. The plurality’s interpretation of §2 of the Voting Rights Act of 1965 is difficult to fathom and severely undermines the statute’s estimable aim. Today’s decision returns the ball to Congress’ court. The Legislature has just cause to clarify beyond debate the appropriate reading of §2."
Ginsburg re-used the tennis reference undoubtedly due the effect it had in Ledbetter.  I previously commented on the distortion that had been done to the majority opinion in that case.  In addition to the commentary below, it just seems petty for her to engage in this type of behavior.  Not every justice writes for or joins the majority in every case.  For her to run to Congress to plead for their intervention is akin to the kid on the playground who doesn't get his/her way running to the teacher to tattle tell.  It also interjects her personal policy preferences in a way that severely undermines an independent judiciary.

Ed Whelan has chimed in at Bench Memos
What business is it of Ginsburg’s to invite Congress to legislate on a matter, much less to legislate in a certain way?  I suppose that it’s no wonder that a justice who can’t separate judging from politics—and whose decisionmaking routinely indulges and entrenches her own political preferences—would see no reason to refrain from advising Congress how to carry out its legislative function. 
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 tentatively 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? I don't see how you can have it both ways.

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