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The lectures notes are here. The live chat is here.

This graphic, courtesy of the Dukeminier & Krier web site, will help explain Willard v. First Church of Christ.

Also check out this animation of  Van Sandt v. Royster.

In a wide-ranging interview with Jeff Rosen, Justice Ginsburg seemed to weigh in on a Texas abortion case currently pending before the 5th Circuit:

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.

It seems that Justice Ginsburg has made up her mind about this law. It is not a health measure, but a law to put clinics out of business. This would be a per se “undue burden” under Casey. She doesn’t trust the Texas legislature in the least.

Also, Justice Ginsburg doesn’t think much of the courts deciding these cases. They “can’t be trusted either.”

This case may be up for certiorari in the not-too-distant future. Is this a ground for disqualification? Seems like it.

Update: In response to comment below about the fact that Scalia, Ginsburg, and others have commented about abortion before, I wrote:

What makes this comment so problematic is that she referred to a specific law that is currently before the 5th Circuit, and will be appealed to SCOTUS one way or the other. Scalia and GInsburg have talked about abortion and the death penalty ad nauseum for decades, but it was always framed in terms of the issues they discussed in their dissents–not specific cases that may come before the Court. RBG’s comments seem akin to Scalia’s comments about the pledge of allegiance while the Newdow litigation was making its way through the lower courts. Scalia did recuse there.

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.

JR: [laughs]

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.

RBG: Yes.

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.

Of late, the Notorious RBG has repeated over and over again that she should not retire, as the President would not be able to appoint someone better (read liberal) than her. As I’ve explained several times, I’m sure most liberals would prefer someone more moderate than she is, but 30 years younger. Also, I’m not sure why she thinks the gridlock in the Senate will get any better in the future. More likely than not, it will become even *harder* to nominate someone further from the ideological center. Anyway, I digress.

Is it in fact true that someone like RBG could not be confirmed today? At 538, Harry Enten analyzes a variable known as the “Segal-Cover ideological score” that breaks down how far from the ideological center a Supreme Court nominee is. And, what you’ll find, is that RBG was deemed *less* liberal than Sotomayor or Kagan.

[Ginsburg] had a Segal-Cover ideological score, a metric that uses newspaper editorials to rate justices on a liberal-conservative scale, of 0.68 (1.0 being the most liberal).

That’s less liberal than both of Obama’s appointees, Justices Elena Kagan (0.73) and Sonia Sotomayor (0.78), when they were nominated. It’s more moderate than liberal lions such as William J. Brennan or Thurgood Marshall, and it’s more moderate than any Republican nominated since Robert Bork in the late 1980s, with the exception of Justice Anthony Kennedy.

Now, perhaps it could be that RBG’s experience on abortion cases would make her unconfirmable, in contrast to Sonia Sotomayor who had been a judge for 20 years, or Elena Kagan who assiduously avoided taking any controversial positions (other than the Solomon Amendments). It’s harder to nail down ideology when it is not tethered to specific acts.

Enten concludes that with this model, and RBG-like nominee would get about 80 votes, even if the GOP controls the Senate. Or “it’s possible that, with a majority, Republicans will try to run out the clock on Obama.”

The New York Times proclaims in a headline, “F.B.I. Confirms a Sharp Rise in Mass Shootings Since 2000.” The lede amplifies that claim:

A report released by the F.B.I. on Wednesday confirmed what many Americans had feared but law enforcement officials had never documented: Mass shootings have risen drastically in the past half-dozen years.

Throughout the article, over and over again, the Times makes several claims about how the number of “mass shootings” has sharply increased. From the article, you would think the FBI report is about mass shootings. But it’s not. Instead, if you read the third and fourth words of the title, you find that this report focuses on “A Study of Active Shooter Incidents in the United States Between 2000 and 2013.”

“Active Shooters” and “Mass Shootings” are not the same thing. If you read the fifth paragraph of the article you find this important statement:

This is not a study of mass killings or mass shootings, but rather a study of a specific type of shooting situation law enforcement and the public may face.

The agreed-upon definition of an active shooter by U.S. government agencies—including the White House, U.S. Department of Justice/FBI, U.S. Department of Education, and U.S. Department of Homeland Security/Federal Emergency Management Agency—is “an individual actively engaged in killing or attempting to kill people in a confined and populated area.”3 Implicit in this definition is that the subject’s criminal actions involve the use of firearms.4

For purposes of its study, the FBI extended this definition to include individuals, because some incidents involved two or more shooters. Though the federal definition includes the word “confined,” the FBI excluded this word in its study, as the term confined could omit incidents that occurred outside a building.

If you read till page 9 of the FBI report, you find the numbers concerning casualties:

The FBI found that 64 incidents [out of 160] (40.0%) would have been categorized as falling within the new federal definition of “mass killing,” which is defined as “three or more killings in a single incident.”19

Later we find that over these 64 incidents occurred within the last 7 years. The report does not break down whether these mass killings are increasing. There is no proof, as the headline suggests, that these are on the rise. Though, as I argue in The Shooting Cycle (with fairly recent numbers), they are not.

It is all too common for the media to conflate “Mass Shootings” (a term that makes people scared) and “Active Shooter” (a term that doesn’t really have any cultural resonance). In fact, the word “Active Shooter” appears only in the caption to the Infographic the Times provided. It’s important to get terminology right–especially when public policy decisions are made on these bases.

I submitted this letter to the Editor of the Times:

“F.B.I. Confirms a Sharp Rise in Mass Shootings Since 2000” (Sept. 24) provides an inaccurate account of new statistics about gun violence. Although the article repeatedly references “mass shootings,” the F.B.I. report focuses on “active shooters.” The F.B.I. states in the fifth paragraph “This is not a study of mass killings or mass shootings.” Mass shootings, or mass killings, are defined as “three or more killings in a single incident.” In contrast, an “active shooter” is “an individual actively engaged in killing or attempting to kill people in a confined and populated area.” While the former involves three or more casualties, the latter includes unsuccessful attempts, as well as using a gun to wound. Contrary to the title, the F.B.I report does not prove that mass shootings are on the rise. A recent article I published in the Connecticut Law Review demonstrates these tragedies are rare, and not occurring more frequently.