We shall not defer

Adam Liptak has a nice profile of Supreme Court Justice Ruth Bader Ginsburg in Sunday’s NYT.

One quote in particular grabbed me:

With the departure of Justice John Paul Stevens in 2010, Justice Ginsburg became the leader of the court’s four-member liberal wing, a role she seems to enjoy. “I am now the most senior justice when we divide 5-4 with the usual suspects,” she said.

Three things are notable about this rare insight into judicial temperament.

First, there’s the egoism on display. A judge enjoying being the most senior. Fine. Not a shocking insight, and probably a confirmation of what you might expect motivates elites.

Second, this egoism is engaged even when one is on the losing side! (One could fill a football stadium with the number of activists that this describes.)

Third, that there is often a 5-4 divide “with the usual suspects.” This probably surprises no one with a newspaper – the court is polarized into two camps, with a swing vote of Anthony Kennedy in the middle.

But the frank acknowledgment of this math by a sitting justice jarred me a bit. It’s something more than a ratio: it’s a concession that something other than finding the correct interpretation of the law motivates justices, and they cop to it.

Is it ideology, or something else? Ginsburg doesn’t say. But there’s something about “usual suspects” that announces a regularity of perspective that is at odds with the mythology of the judge out there “discovering the law.”

Liptak provides another quote gave a bit more color to this discussion:

On Friday, she said repeatedly that the identity of the president who would appoint her replacement did not figure in her retirement planning.

“There will be a president after this one, and I’m hopeful that that president will be a fine president,” she said.

Yes, presidents come and go. Candidates for president sell themselves as having a regularity of perspective too. The voters decide whether they like that perspective, vote accordingly, and then get a chance to reconsider their views every four years.

Not so with judges. They admit they have a perspective, and they also flaunt their prerogative to not step aside, even when it could greatly assist the longevity of the project (progressive or conservative) of which they cop to being a part.

This is at the root of the legitimacy problem confronting judges. Not only are they not elected, but they owe their seats to some election that was typically not the most recent one. It’s as if we created a special branch of government to be run by inexperienced politicians imported from the past.

Finally, Liptak also helps shed light on how judges think about legislators:

There is a framed copy of the Lilly Ledbetter Fair Pay Act of 2009 on a wall in her chambers. It is not a judicial decision, of course, but Justice Ginsburg counts it as one of her proudest achievements.

The law was a reaction to her dissent in Ledbetter v. Goodyear Tire and Rubber Company, the 2007 ruling that said Title VII of the Civil Rights Act of 1964 imposed strict time limits for bringing workplace discrimination suits. She called on Congress to overturn the decision, and it did.

“I’d like to think that that will happen in the two Title VII cases from this term, but this Congress doesn’t seem to be able to move on anything,” she said.

“In so many instances, the court and Congress have been having conversations with each other, particularly recently in the civil rights area,” she said. “So it isn’t good when you have a Congress that can’t react.”

The recent voting rights decision, Shelby County v. Holder, also invited Congress to enact new legislation. But Justice Ginsburg, who dissented, did not sound optimistic.

“The Voting Rights Act passed by overwhelming majorities,” she said of its reauthorization in 2006, “but this Congress I don’t think is equipped to do anything about it.”

In other words,  a judiciary that overturns laws needs a Congress willing to pass new ones… if the justice system is to be a check on (but not a fetter on) democracy.

What are the implications of the judicial function when politics are polarized and stalemated? I’ve raised this question with respect to WTO rulings over at the IELP blog. When legislatures are active and functional, there seems to be a lot of room for judges (domestic and international) to help improve the quality of law. When they are not, overly active judiciaries may do more harm than good.

I can’t for the life of me determine a reasonable way to resolve this problem. Policymakers use or discuss using macroeconomic triggers when it comes to unemployment benefits. There might be some role for triggering more active judicial review when legislatures are legislating more. When they are legislating less, it could be an indication that it is very difficult to put together legislative coalitions. In that case, the few “bargains” that do survive might deserve more deference. But such a mechanism would pose concerns for people that care about the constitutionality or rights implications of “bad” laws – whether or not they are passed in times of democratic vibrancy.