The Notorious #RBG graces the cover of The New Republic, with an extended interview with Jeff Rosen. Here are some of the highlights.
One of the recurring themes was how the Court shifted after the retirement of Justice O’Connor.
JR: What decisions would have come out differently if Justice O’Connor were still on the Court?
RBG: She would have been with us in Citizens United, in Shelby County, probably in Hobby Lobby, too.
RBG thought there were slight differences between Rehnquist and Roberts, specifically with respect to strictness during oral arguments and at conference.
RBG: I was very fond of the old chief. I am also an admirer of the current chief, who had extraordinary skills as an advocate. He was a repeat player at oral argument, always super prepared, engaging in his presentation, and nimble in responding to the Court’s questions. As to the change, I regard the Roberts / Rehnquist change as a “like / kind exchange,” an expression tax lawyers use. Our current chief is a bit more flexible at oral argument: He won’t stop a lawyer or a justice in mid-sentence when the red light goes on. And at our conference, he’s a little more relaxed about allowing time for cross-table discussion.
And she holds out hope JGR will go WHR and be more liberal later in his career.
As to his decisions, there’s not a major shift. I’m hoping that as our current chief gets older, he may end up the way Rehnquist did when he wrote for the Court upholding the Family and Medical Leave Act. That’s a decision you wouldn’t have believed he would ever write when he joined the Court in the early ’70s. Chief Justice Rehnquist also decided that, as much as he disliked the Miranda decision, it had become police culture and he wasn’t going to overrule it.
Once again, she faults Alito for replacing O’Connor with the shift of the Court.
But the big change was not Roberts for Rehnquist, it was Justice O’Connor’s retirement.
I wonder what RBG would have thought of Justice Harriet Miers…
RBG again addresses the issue of who would be better than her.
I asked some people, particularly the academics who said I should have stepped down last year: “Who do you think the presidentcould nominate and get through the current Senate that you would rather see on the Court than me?” No one has given me an answerto that question.
This is such an odd way to phrase the answer. RBG is responding directly to her critics. But she must be speaking hypothetically. I can’t imagine these conversations actually took place. For if they had, I’m sure academics could produce a list of other candidates 30 years younger. And, let us not forget that Justices Kagan and Sotomayor were confirmed not too long ago. Are we to believe these are the *only* two people anywhere that could possibly get through the Senate? Ruth Bader Hubris indeed.
RBG explains why she tries to get the dissents in a single voice, and discourages concurring opinions:
JR: You’ve made it a priority as senior associate justice to have all of the dissenters speak in one voice. Why?
RBG: When I became the most senior member of four dissenters, I had a very good model to follow, Justice [John Paul] Stevens. He was always fair in assigning dissents: He kept most of them himself.
RBG: I try to be fair, so no one ends up with all the dull cases while another has all the exciting cases. I do take, I suppose, more than a fair share of the dissenting opinions in the most-watched cases.
JR: And you’ve discouraged separate concurrences.
JR: Why is that?
RBG: The experience I don’t want to see repeated occurred in Bush v. Gore. The Court divided five to four. There were four separate dissents, and that confused the press. In fact, some of the reporters announced that the decision was seven-two. There was no time to get together. That case was accepted by the Court on Saturday, briefed on Sunday, oral argument on Monday, decisions on Tuesday. If we had time, the four of us would have gotten together, and there might have been one dissent instead of filling far too many pages in the U.S. Reports6 with our separate dissents.
RBG also explains that Breyer and Kagan would not take a position on for-profit corporation’s “free exercise rights.”
JR: Generally, you’ve been more reluctant to compromise than some of your colleagues. Is that a conscious decision?
RBG: That was so in Bush v. Gore. It was also true more recently in theHobby Lobby case, where Justices Breyer and Kagan said we’d rather not take a position on a for-profit corporation’s free-exercise rights.
And for the last time, Hobby Lobby was NOT about the First Amendment. It was about RFRA. She has repeated this mistake more times than I can count. At this point, I am beginning to think it is deliberate.
RBG ranks the worst rulings–Citizens United, the commerce close aspect of NFIB, and Shelby County:
JR: What’s the worst ruling the current Court has produced?
RBG: If there was one decision I would overrule, it would be Citizens United. I think the notion that we have all the democracy that money can buy strays so far from what our democracy is supposed to be. So that’s number one on my list. Number two would be the part of the health care decision that concerns the commerce clause. Since 1937, the Court has allowed Congress a very free hand in enacting social and economic legislation.8 I thought that the attempt of the Court to intrude on Congress’s domain in that area had stopped by the end of the 1930s. Of course health care involves commerce. Perhaps number three would be Shelby County, involving essentially the destruction of the Voting Rights Act. That act had a voluminous legislative history. The bill extending the Voting Rights Act was passed overwhelmingly by both houses, Republicans and Democrats, everyone was on board. The Court’s interference with that decision of the political branches seemed to me out of order. The Court should have respected the legislative judgment. Legislators know much more about elections than the Court does. And the same was true of Citizens United. I think members of the legislature, people who have to run for office, know the connection between money and influence on what laws get passed.
In a question about abortion, Justice Ginsburg speaks of the recent Texas law–a law that is before the 5th Circuit and may be appealed to the Court. Is this a grounds for recusal???
JR: So how can advocates make sure that poor women’s access to reproductive choice is protected? Can legislatures be trusted or is it necessary for courts to remain vigilant?
RBG: How could you trust legislatures in view of the restrictions states are imposing? Think of the Texas legislation that would put most clinics out of business. The courts can’t be trusted either. Think of the Carhart decision10 or going way back to the two decisions that denied Medicaid coverage for abortion. I don’t see this as a question of courts versus legislatures. In my view, both have been moving in the wrong direction. It will take people who care about poor women. The irony and tragedy is any woman of means can have a safe abortion somewhere in the United States. But women lacking the wherewithal to travel can’t. There is no big constituency out there concerned about access restrictions on poor women.
And, in a more light-hearted part of the interview, RBG opines on her, and Justice Kagan’s exercise routine.
JR: Your health is good?
RBG: Yes, and I’m still working out twice a week with my trainer, the same trainer I now share with Justice [Elena] Kagan. I have done that since 1999.
JR: Do you work out together?
RBG: No, she’s a lot younger than I am, younger than my daughter. She does boxing, a great way to take out your frustrations.
JR: And what do you do?
RBG: I do a variety of weight-lifting, elliptical glider, stretching exercises, push-ups. And I do the Canadian Air Force exercises almost every day.
JR: What are the Canadian Air Force exercises?
RBG: They were published in a paperback book put out by the Canadian Air Force.2 When I was twenty-nine, that exercise guide was very popular. I was with Marty3 at a tax conference in Syracuse. We stopped to pick up a lawyer to attend the morning program with us. He said, “Just a moment, I have to finish my exercises.” I asked him what those exercises were. He replied they were the Canadian Air Force exercises and said he wouldn’t let a day go by without doing them.
The lawyer who told me about the Canadian Air Force exercises stopped doing them years ago. I still do the warm-up and stretching regime almost every day.
JR: Are those the exercises you did when I met you at the Court of Appeals in 1991?
Rosen explains that he first met RBG in leotards:
I have known Ginsburg since 1991, when we met while she was sitting on the U.S. Court of Appeals for the D.C. Circuit and I was a law clerk for its chief judge, Abner Mikva. (One day, I ran into her in the courthouse elevator, as she was coming back from a workout in a leotard and leggings. She was a formidable presence, even in gym clothes.)
Alas, RBG was down with jazzercise.
RBG: No. I was part of Jazzercise class. It was an aerobics routine accompanied by loud music, sounding quite awful to me. Jazzercise was popular in the ’80s and ’90s.