Little Sisters of the Poor v. Sebelius (Ginsburg, J., dissenting from granting of stay on behalf of Sotomayor, J., after the fact)

August 22nd, 2014

In her interview with Marcia Coyle, Justice Ginsburg attempted to explain why Justice Sotomayor wrote such a “blistering” dissent in Wheaton College.

NLJ: A day after the Hobby Lobbydecision, the court, with three dissents, issued an injunction against the application of the contraceptive insurance requirement to Wheaton College, a religious institution. Wheaton had objected to getting an exemption via a self-certifying letter stating its objections to the coverage. You assigned the Wheaton dissent to Justice Sotomayor as well and she wrote a blistering opinion.

GINSBURG: That may have been the same thing. She granted the stay in Little Sisters of the Poor [raising similar objections to the letter] because she was the Tenth Circuit justice. I think it was another case where she wanted to make clear what her view was. Besides, there was enough in my dissent in Hobby Lobby. I had said everything I wanted to say on that subject so it was appropriate for somebody else.

This response makes no sense on three levels. RBG is effectively arguing that Sotomayor didn’t mean what she said in Little Sisters of the Poor, and Wheaton College was her responsibility to tell (who, the public?) what her view was.

First, what difference does it make that she was the Circuit Justice. As the order makes clear, the injunction was “submitted to Justice Sotomayor and by her referred to the Court, the Court orders.” She didn’t act alone, as RBG would suggest. The order spoke on behalf of the Court. In contrast, in Wheaton College, where Justice Kagan was the Seventh Circuit Justice, Kagan dissented. The Court’s order begins, “The application for an injunction having been submitted to JUSTICE KAGAN and by her referred to the Court, the Court orders.” But, Kagan dissented! So this is a specious line of argument. There’s no obligation on the Circuit Justice to join an order referred to her.

Second, if RBG or Sotomayor didn’t agree with the order, then they can dissent. They can’t dissent after the fact. In a recent interview, Justice Ginsburg made an odd point–just because a Judge does not dissent from an order granting or denying a stay, doesn’t  mean the Justice actually agree with the order:

Ginsburg cautioned not to read too much into the absence of public dissent when the court rejects 11th-hour appeals to stop executions. ‘‘When a stay is denied, it doesn’t mean we are in fact unanimous,’’ she said.

If a Justice does not agree with an order, he or she dissents. Perhaps if she doesn’t agree on the merits, but doesn’t want to make a statement about it, that means she agrees with the order. Justices routinely dissent from the denial of a stay of a death penalty. But this Monday-Morning Quarterbacking from the Justice is bizarre.

Third, but really, Ginsburg isn’t opining on what she would have done. Her comment only focused on Sotomayor. She is again selling out Sotomayor, and noting that she cast a vote she didn’t believe in–apparently as she did with her Fisher vote. By saying “she wanted to make clear what her view was,” Ginsburg suggests that her views were not what she joined in Little Sisters. (I note in this post that there wasn’t much of a difference between Wheaton College and Little Sisters).

Such odd behavior from Justice Ginsburg.

In a related context, I have looked to the fact that none of the Justices have dissented from the Court’s stays of same-sex marriage decisions in Utah and Virginia as evidence that all of the Justices agree that a stay should be granted. This is not to say the Justices all agree on the merits–but they at least agree on the procedural issue. Now, I don’t even know if I can think that anymore.