Marcia Coyle, a long-time Supreme Court reporter and the author of a great book on the Roberts Court, sat down earlier this week with Justice Ruth Bader Ginsburg in her chambers.
This interview went a bit deeper than a lot of recent interviews, and covered a broad range of topics, with Ginsburg's statements on these five topics standing out to me the most: the death penalty, Justice Sonia Sotomayor's dissents, gay marriage, law school, and the "Notorious RBG" fan club.
1. Death Penalty: What a Mess.
RBG told Coyle that had she been in the legislature, or on the Court when it struck down the death penalty (then reversed course and reinstated it four years later), there would be no death penalty today. (She called Furman v. Georgia a "golden opportunity.")
But, unlike Justices Brennan and Marshall, who took a hard line and dissented in every death penalty case, Ginsburg took a more nuanced approach so that she could be a contributor to death penalty jurisprudence. She said that these cases challenged her because both the "dense" jurisprudence and the Antiterrorism and Effective Death Penalty Act complicate matters.
2. Windsor: Federalism or Fundamental Rights?
States cite the Court's recent decision in Windsor for the proposition that defining marriage is the state's domain. Same-sex marriage advocates point to the equal protection language.
Ginsburg? Surprising nobody, she sides with the latter arguments, pointing to Romer and Lawrence as other precedents for "equal dignity."
3. Sotomayor's Street Cred.
As the senior liberal on the court, RBG assigns dissents. When asked why Justice Sotomayor was given the dissent in the Michigan affirmative action case, Ginsburg stated that Sotomayor "cared deeply about the issue" and after she joined the majority in Fisher (the Texas affirmative action case from the preceding term), she wanted to clarify her views. The "passionate" dissent, as RBG called it, inspired blowback from her fellow justices.
"If anybody had doubts about her views on affirmative action she wanted to quell them, which she certainly did," Justice Ginsburg stated.
Sotomayor was also assigned the dissent in Wheaton College (religious objections to the paperwork required for an exemption to the birth control mandate) for the same reason -- to clarify her views after she granted the injunction in the earlier Little Sisters of the Poor case.
4. Three Years of Law School.
RBG is in favor of sticking with the three-year model for law school:
"One of the things that should be done is to require every student to have how many hours of public service. If you just needed the skills to pass the bar, two years would be enough. But if you think of law as a learned profession, then a third year is an opportunity for, on the one hand, public service and practice experience, but on the other, also to take courses that round out the law that you didn't have time to do.
"Two years -- it does reduce the respect, the notion that law is a learned profession. You should know a little about legal history, you should know about jurisprudence. [Two years] makes it more of a craft like the training you need to be a good plumber. "
5. Biographical Books and Blogs
Many Supreme Court justices, after stepping aside, write books about the Court. Would RBG?
"Never," she responded. Ginsburg noted that there is already an authorized biography in the works, as well as an unauthorized one and a book on both her and retired Justice Sandra Day O'Connor. And another book by a professor where people who know RBG will each write a chapter.
And if you think she forgot about new media, think again: "..and then there is the Tumblr, the Notorious R.B.G.," she told Coyle.
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