Among the the other things the Inglorious RBG said in her interview with the New York Times, she offered a breakdown of the votes in the four-to-four affirmance in U.S. v. Texas.
A second deadlock, in United States v. Texas, left in place a nationwide injunction blocking Mr. Obama’s plan to spare more than four million unauthorized immigrants from deportation and allow them to work. That was unfortunate, Justice Ginsburg said, but it could have been worse.
“Think what would have happened had Justice Scalia remained with us,” she said. Instead of a single sentence announcing the tie, she suggested, a five-justice majority would have issued a precedent-setting decision dealing a lasting setback to Mr. Obama and the immigrants he had tried to protect.
Justice Ginsburg noted that the case was in an early stage and could return to the Supreme Court. “By the time it gets back here, there will be nine justices,” she said.
She also assessed whether the court might have considered a narrow ruling rejecting the suit, brought by Texas and 25 other states, on the ground that they had not suffered the sort of direct and concrete injury that gave them standing to sue. Some of the chief justice’s writingssuggested that he might have found the argument attractive.
“That would have been hard for me,” Justice Ginsburg said, “because I’ve been less rigid than some of my colleagues on questions of standing. There was a good argument to be made, but I would not have bought that argument because of the damage it could do” in other cases.
I find unbecoming her phrasing about “what would have happened had Justice Scalia remained with us.” Some friend, huh.
But more importantly, we get an insight into the votes. It was widely assumed (by me) that the Court split 4-4 on standing. But maybe the Justices who were in the majority in Massachusetts v. EPA–Breyer and Ginsburg–were okay with states challenging the federal government. Eliminating the power of states to sue would do “damage,” RBG said. Maybe (as I’ve long speculated), liberals want states to have this power in the event of a Republican presidency. In any event, as she noted this case isn’t over. It’s coming back up. And she has already tipped her hand that she thinks there is standing. Texas’s case for standing was far, far stronger than Massachusetts’s.
RBG also praised the 4-4 affirmance in Freidrichs.
One of the 4-4 ties, Friedrichs v. California Teachers Association, averted what would have been a severe blow to public unions had Justice Scalia participated. “This court couldn’t have done better than it did,” Justice Ginsburg said of the deadlock. When the case was argued in January, the majority seemed prepared to overrule a 1977 precedentthat allowed public unions to charge nonmembers fees to pay for collective bargaining.
Who said this gridlock was all bad for RBG?