At a July 21 Duke Law event in Washington, D.C., Associate Justice Ruth Bader Ginsburg recapped the U.S. Supreme Court’s 2016-17 term and discussed its recent consensus among the justices, its rulings on the scope of the Trump administration’s “travel ban” executive order, and her legal legacy during an interview with Professor Neil Siegel.
Ginsburg told the audience of Duke alumni and students in the Law School’s D.C. Summer Institute on Law and Policy, which Siegel directs, that this is “a great time” to go to law school. She also encouraged young lawyers to incorporate public service into their careers.
“Whatever your occupation, try to do something outside of yourself,” she said. “Whatever cause it is that you care deeply about, whether it's the environment, or ending the racial discrimination that's still with us, or gender discrimination, whatever it is. I’m pleased to see that my law clerks who are now leaving are all looking for law firms that have a significant pro bono practice.”
In her summation of the Court’s most recent term, Ginsburg said that the appointment of Neil Gorsuch to replace Antonin Scalia, who died in February of last year, was the “largest headline news” of the term. Gorsuch “managed to prepare exceedingly well for 13 trying cases” despite having only one week between confirmation and first case, she said, and cast himself “as potential rival to Justice [Sonia] Sotomayor as the justice who asks the most questions at oral argument.”
Ginsburg outlined the legal histories and the Supreme Court’s opinions in several cases from the 2016-17 term, including: Salman v. U.S., in which the Court found that insider information given to a friend or relative without financial incentive is illegal under insider trading laws; the housing discrimination case Bank of America v. Miami, in which the Court found that Miami has standing to sue if it can show it suffered financial damage from the bank’s lending practices that would not have occurred in any event; and Packingham v. North Carolina, in which the Court found that a North Carolina law barring sex offenders from accessing a wide array of social networking sites online was unconstitutional.
She also discussed Trinity Lutheran v. Comer, in which a religious school challenged the State of Missouri’s decision to deny them grant funding for improving a playground. The state argued that the Missouri constitution barred any public funds from being spent on a religious entity, but the Court ruled that excluding the church from the grant program violated the federal Constitution. “A generally available benefit, the Court reasoned, could not be withheld on account of the beneficiary’s religious identity,” Ginsburg explained.
“In a dissent,” she added, “I joined Justice Sotomayor, who explained that in her view, the first amendment’s religion clauses demanded a stricter separation of church and state.”
Ginsburg previewed some of the 26 cases the Court has agreed to hear in the next term, including two that involve competing claims of religious freedom and discrimination arising from the Court’s landmark Obergefell decision on same-sex marriage and others prompted by the Trump administration’s aggressive stance on illegal immigration.
The Court will hear arguments regarding the administration’s proposed “travel ban” restrictions, which delay U.S. entry to citizens of six predominantly Muslim countries unless they have a “bona fide” relationship in the U.S. The Court had clarified the order two days before Ginsburg addressed the Duke Law audience, expanding it to include grandparents and other relatives.
“We decided that the government had been too restrictive in what family relationships qualified as close,” she said.
Ginsburg called the Wisconsin redistricting case Gill v. Whitford, in which the Court will determine the legality of voting districts allegedly drawn using partisan gerrymandering, “perhaps the most important case so far.”
In the conversation that followed, Siegel, the David W. Ichel Professor of Law and Professor of Political Science, asked about the Court’s “sheer level of consensus” in the most recent term. Of the 62 decisions handed down, 31 were unanimous, and only nine were decided by a 5-3 or 5-4 margin.
“To what extent do you think that’s a reflection of an eight-justice court for most of the term,” Siegel asked, “or to what extent do you think it’s you and your colleagues working hard to do what the Chief Justice has said he really wants to accomplish, which is greater consensus?”
“My answer is ‘both,’” Ginsburg replied. “Eight is not a good number for a collegial court, and we did try hard to avoid 4-4 splits. We were not totally successful, but I think that speaks rather well for the Court that we were able to agree so much more often than we disagreed sharply.”
When Siegel asked how Ginsburg weighed the importance of consensus against her prerogative to dissent, she said that, for her, public dissent depends on the issue before the Court.
“If it's a question of statutory interpretation, and there were reasonable arguments made on both sides, and what the society needs is a rule of the road … I will bury my dissent – we call that a graveyard dissent – and go along with the majority,” she said. “But if it’s an important question, for example some of the decisions that I mentioned from this term, I will go my own way. I will never compromise when it's a question of, say, freedom of speech, press, gender equality.”
When asked what she would like young people to know about her life’s work, including her 24 years on the nation’s highest court and prior career as an appellate judge and advocate, Ginsburg described her career simply: “I have tried my best with whatever limited talent I have to help move society in a direction that I think is healthy for people.”