Justice Ruth Bader Ginsburg discusses the 2017-18 Supreme Court term


Good evening, and
welcome to a conversation with Associate Justice Ruth
Bader Ginsburg of the Supreme Court of the United States. Many thanks to Duke
Law School and Duke DC for co-sponsoring this event. My name is Neil Siegel. I am a Duke graduate, a former
law clerk of Justice Ginsburg, and currently the David W. Ichel
Professor of Law and Professor of Political Science
at Duke Law School. I hope one day to attend
law school myself. I am also the Director of
the Law School’s DC Summer Institute on Law and Policy. The Institute
enables students who are diverse along many
dimensions and who are thinking about law school,
the opportunity to try it before they buy it by
taking short, introductory law school courses taught
by Duke law faculty each summer in our
nation’s capital. This summer we are honored
that Senator Mike Lee of Utah as well as Miss Danielle Gray,
former senior advisor to US President Barack Obama, have
joined our teaching faculty. The Institute is
in its sixth year. Over the past four
summers, we have been hosted in very fine
fashion by Jones Day, one of our nation’s most
prominent law firms. Thank you once again for
your hospitality, Jones Day. For the sixth year in a
row now, Justice Ginsburg is giving generously of
her time and her mind by joining us for a
conversation about law and life. She became a judge on
the US Court of Appeals for the DC Circuit
in 1980 and a justice on the Supreme Court in 1993. She has served on the Supreme
Court for a quarter century now. And judging from her push-up
regimen, she is not done. Justice Ginsburg is one of
a small number of justices who earned a prominent place
in history before ever becoming a judge. She did so by persuading
those in positions of power to honor a truth that ought
to have been self-evident but historically has not
been, that women and girls too are part of the people in whose
name the Constitution purports to speak. Her work as a justice,
including in recent years, when she has written some of
the most important opinions of her storied career, has
reflected her commitment to the equal citizenship
stature of all people, including people who
traditionally did not count or count nearly enough in
constituting “we the people.” The justice will
now offer us a talk on key decisions
of the 2017 term, after which she will
join me for a chat. Justice, welcome. And thank you once again for
making this evening possible. [APPLAUSE] Thank you. I’d like to start
by acknowledging the presence of my
favorite client, Steven Wiesenfeld and his wife Elaine. The term just ended
was momentous. Our docket included far
more than the usual number of high profile disputes. But topping the headline news
at our closing conference, Justice Kennedy announced his
retirement, effective today. Counting his years as a judge
of the US Court of Appeals for the Ninth Circuit, he has
served on the federal judiciary for 43 years. I will miss the
pleasure of his company at our conference table,
his helpful suggestions on circulating opinions,
his recommendations of art exhibitions to visit with my
chamber staff, and much more. The biggest procedural
news of the term, the court finally adopted
electronic filing. Most federal courts began
accepting online submissions more than a decade ago. But the Court, until
recently, remained wedded to paper filings. Beginning last November,
however, all parties represented by counsel must
submit electronic versions of briefs and petitions through
the Court’s online system in addition to
lodging paper copies. Most documents
submitted electronically are made available instantly to
the public on the Court’s web site free of charge. Pro-se litigants continue to
submit documents on paper, but the court staff
swiftly converts those into electronic form. As in prior terms, we heard
from some keen observers of our oral argument sessions. According to our court
watcher’s reckoning, Justice Breyer spoke
the most words, 22% of all words spoken by
justices during the term. Justice Sotomayor
came in second at 17%, while Justice Kennedy trailed
with 5% of total words, not counting Justice Thomas, who
asked no questions, because he thinks the rest of
us ask far too many. The award for most questions
asked in a single case went to Justice Alito,
who posed an impressive 44 questions in Minnesota
Voters Alliance v. Mansky a case involving proper
attire in voting venues. And Justice Kagan
took top honors for asking the
longest questions, averaging 93 words per query. The court released 59 signed
decisions in argued cases last term, dividing 5-4
or 5-3 in 20 of the 59. We were unanimous, at least in
the bottom line judgment, in 28 out of 59, or 39%
of all opinions. Our sharp disagreement,
34% of all signed opinions, was considerably higher
than in prior terms. In the preceding
term, for example, we divided 5-4 or 5-3 in only
15% of all decisions rendered. In addition to our 59 signed
decisions this past term, we issued 12 per curiam
decisions, 11 of them opinions rendered without full
briefing or oral argument, just on the basis of
the petition for review and the brief in opposition. Add to those numbers one
judgment in a water access dispute between
Wyoming and Montana on our original
jurisdiction docket. Do you know that the Court is
the first and last instance when two states have a dispute? And it’s mainly
about water rights. So our total decisions rendered
during the term came to 72. Now let me turn to some
of the high profile cases. Among cases generating the
largest public interest, Masterpiece Cake Shop
against Colorado Civil Rights Commission. That case involved
a baker who refused to sell a wedding cake
to a same-sex couple, because same-sex marriage
offended the baker’s sincerely held religious belief. The baker had been sanctioned
by the state’s Civil Rights Commission for
violating Colorado’s anti-discrimination law, which
prohibits business enterprises from refusing to serve
customers on the basis of enumerated characteristics,
including sexual orientation. Writing for seven justices
and full or in part, Justice Kennedy reversed
the Colorado Supreme Court, which had upheld the Civil
Rights Commission’s decision. The majority held that the
Commission violated the baker’s free exercised rights
by exhibiting hostility to his religious beliefs, by
treating his case differently from the case of bakers
who refused to make cakes condemning same-sex marriage. The court also observed that
two of the five Civil Rights Commission members
had made comments suggesting the baker’s
religious faith was not a legitimate reason to refuse
to serve the gay couple. I dissented, joined
by Justice Sotomayor. I challenged the majority’s
equation of the two service refusals it compared. One was motivated by objections
to a protected characteristics. The other was driven by
objections to producing, for any customer, cakes
bearing demeaning messages. It’s one thing to say I’ll
sell to one group of people, heterosexual couples, and not
another, same-sex, and quite another to say I will not
make a cake with a demeaning message for anyone. It is a product that is
simply not on sale in my shop. Only two of the many decision
makers in the case, I added– the two commissioners on
the Colorado Civil Rights Commission– only
two made comments that might be interpreted
as expressing hostility to religion. Two commissioners
with the case then went through two
levels of court review and no one charged that the
Colorado courts harbored any religion based bias. One noteworthy case
from the Second Circuit escaped our judgment, United
States against Microsoft. It concerned a federal
law enforcer’s demand that a US based email
services provider disclose the contents of emails stored
abroad in Dublin, Ireland. The question presented–
was the demand an unauthorized
extraterritorial application of the Stored
Communications Act? The Second Circuit
had answered yes, reversing the district
court’s judgment. Less than a month after we
heard argument, enough time for a swift opinion writer, to
have a draft in circulation, Congress resolved
the case for us. It amended the Stored
Communications Act to clarify that, yes, law
enforcement officers generally may require companies
like Microsoft to disclose e-mails stored
abroad but accessible in the United States
by pushing a button. Both Microsoft
and the government supported the amendment. With no live dispute
remaining between the parties, we dismissed the case as moot
and vacated the judgments of the Second Circuit
and the district court so they would have no
force as precedent. We might have had an inkling
that that would happen, because a number of senators
attended the oral argument in that case. Another closely watched
case brought good news for risk takers and
less welcome news for the Las Vegas sportsbook. In Murphy against
NCAA, the Court considered the constitutionality
of the Professional and Amateur Sports Protection
Act, or PASPA, a 1992 statute that prohibited states from
authorizing or licensing sports gambling schemes or, if
they were authorized, from operating such schemes. New Jersey’s plea,
that PASPA violated the anti-commandeering
principle, did not persuade the
en banc Third Circuit. But the Supreme Court
proved more receptive to the state’s argument. New Jersey won 7-2. That victory likely
would have been hollow had the court found
PASPA’s offending provisions on states authorizing or
licensing sports gambling severable. PASPA’s remaining
unchallenged provision prohibited states
and private parties alike from actually operating
sports gambling schemes in the event that a
state sought formally to authorize or license them. But over my dissent,
joined by Justice Sotomayor and, in relevant part,
by Justice Breyer, the court held
that, had Congress known that it could not
prohibit states from authorizing or licensing sports
gambling schemes, it would have preferred
no statute at all to one banning only
operation of sports gambling. In my view, Congress
would have preferred to salvage rather than
wreck the statute. So the federal ban
on operating sports gambling schemes, in my
judgment, should have survived. But for anyone inclined to
make a trip to New Jersey this summer, Justice Sotomayor’s
money is on the Yankees to win the pennant. A case coming to us from the
Second Circuit, Jesner v. Arab Bank, presented the question
whether the Alien Tort Statute permitted suit against
a corporate defendant. The Alien Tort
Statute was a product of the very first Congress,
a 1789 statute that authorizes foreign citizens
to sue in US courts for torts committed in
violation of the Law of Nations. The Law of Nations
was the expression used in 1789 to mean what we
today call international law. The petitioners were
foreign nationals who brought claims
against the Arab Bank, contending that the bank
had knowingly financed terrorist organizations. The plaintiff’s
petitioners sought damages for injuries caused by
those organization’s attacks in Israel. Arab bank argued that it
was not a proper defendant. With many friends of
court filing on its side, Arab Bank urged that the Alien
Tort Statute applies only to natural persons,
not corporations. The district court
had entered judgment on the plea for
Arab Bank, agreeing that corporations are
not amenable to suit under the Alien Tort Statute. A Second Circuit panel affirmed. The Supreme Court also
agreed that the statute covers only individuals,
not corporations, and therefore affirmed the
Second Circuit’s judgment. Justice Sotomayor dissented,
joined by Justice Breyer, Justice Kagan and me. In recent years, the
court has confronted a number of questions concerning
the impact of technology. The term just ended
with no exception. I already mentioned
the Microsoft case concerning government access
to emails stored abroad. Another case garnering
considerable interest, Carpenter against
United States– at issue, whether the
government’s acquisition of a person’s historical
cell phone location information from a third
party service provider qualified as a Fourth
Amendment search and, if so, whether
the government had to obtain a warrant to gain
access to the information. The government argued that a
cell phone user voluntarily shares her whereabouts
with her carrier, so no warrant was needed
to gain the information. In a 5-4 opinion written
by the Chief Justice, the Court rejected
that argument, ruling that law
enforcement generally must get a warrant to
obtain cell phone location information. Generating five opinions
spanning 115 pages in the US reports, the case has given
Fourth Amendment scholars much to discuss in the
weeks and years to come. Also involving impact of
modern means of communication, South Dakota against Wayfair. South Dakota, like many
states, taxes retail sales of goods and services
in the state. South Dakota requires
retailers making in-state sales to collect tax at
the time of purchase and remit the proceeds to
the state’s revenue offices. But under the Supreme
Court’s 1967 decision, in a case called National Bellas
Hess v. Department of Revenue of Illinois, and reaffirmed
in a 1992 decision, Quill Corporation against
North Dakota, states were not permitted to
impose sales tax collection obligations on
out-of-state retailers that lacked any physical
presence in the state. As a result, states
like South Dakota lost considerable revenue
from the proliferation of internet sales made
by out-of-state vendors. Emphasizing changes in
the national economy since we last
considered the issue, South Dakota asked the court to
overrule Bellas Hess and Quill. And, in a 5-4 decision
by Justice Kennedy, the Court obliged. The Constitution, we held,
does not prevent a state from imposing a
sales tax collection obligation on a seller
merely because the seller lacks any physical
presence in the state. With the internet, you
can have the show room right in your living room or
bedroom at your fingertips. The Chief Justice, joined by
justices Breyer, Sotomayor, and Kagan, dissented. But they agreed that
the precedent was wrong. Nonetheless, they thought
the court should adhere to it on stare decisis grounds, that
is precedent, once decided, shouldn’t be disturbed. The Federal Arbitration
Act, no stranger to the Court in recent
years, was before us again in three consolidated cases. I will refer to
them by the first, the lead case, Epic Systems. The operative facts in each
case were essentially the same. A group of employees joined in
a lawsuit against their employer for alleged violation of
federal and state laws requiring extra compensation
for overtime hours. The employer moved
to dismiss the suit, invoking a clause in
the employment contract that denied the
right to sue in court and required one on one
arbitration of grievances, disallowing proceedings in
which several employees joined together. And if any of you
have credit cards. I’ll bet that there is an
agreement you have made, even though you didn’t
read the fine print, that you will not sue in court. You will sue only
in arbitration, and you will not join
with other people. But there’s something
different about arbitration of worker related problems. And the difference is the
National Labor Relations Act. That landmark legislation
safeguards to employees the right to act in concert
to improve working conditions. In a 5-4 opinion authored
by Justice Gorsuch, the court sided
with the employers, holding that the Federal
Arbitration Act required courts to enforce the one-on-one
arbitration clauses. I dissented, joined by justices
Breyer, Sotomayor, and Kagan. The court’s decision,
I explained, would lead to startling
under-enforcement of statutes like the Fair Labor
Standards Act, legislation designed to
advance the well-being of vulnerable workers. And you can see why. The single worker who has
a claim for overtime pay– well, it might not
even be worthwhile bringing the arbitration,
because the costs would exceed the overtime compensation due. But if you can join together
with dozens, hundreds of similarly situated
workers, then it is worth litigating the matter. Another closely watched
case in the labor area, Janus against The American
Federation of State, County, and Municipal Employees– the petitioner in that
case asked the Court to overrule a 1977
decision, Abood against Detroit
Board of Education, and hold that
requiring public sector employees to pay
anything to a union violates the First Amendment. The court’s decision in Abood
had required all workers, including those who
did not join the union, the union it served as exclusive
collective bargaining agent, to contribute to the cause of
collective bargaining and union operated grievance
procedures on the theory that that benefited all
workers, union members or not, but relieved the
people who opposed the union of any obligation
to support the union’s political activities. That decision had survived
a similar challenge two terms ago in Friedrichs
against California Teachers Association. But the handwriting
was on the wall, because the eight member
court divided four to four. With the court back to
full strength in the 2017 to 2018 term, Abood was once
again up for reconsideration. And in a 5-4 decision by
Justice Alito, announced on the very last day
of the court’s term, the court overruled Abood. Requiring public
sector employees to pay anything to a
union, the majority held, violates the
First Amendment by compelling employees to
subsidize private speech, that it is the union’s
speech, on matters of substantial public concern. In a forceful dissent, joined
by Justice Breyer, Justice Sotomayor, and me,
Justice Kagan explained that the Abood decision,
the 1977 decision, had struck a stable balance
between public employees’ First Amendment rights and
government entities’ interests in running their
workforces as they thought proper. The Court’s decision,
Justice Kagan warned, will have large scale
consequences affecting thousands of contracts involving
millions of public sector employees. One fear is, if you
can get it for free, if you’re a non-union member,
why continue to pay union dues? You’ll get the same
services anyway. Another case in which the
challengers invoked the First Amendment, in National Institute
of Family and Life Advocates, a group of crisis
pregnancy centers challenged a California
law requiring centers with a medical license to
display a notice informing patients that California
provides financial assistance for reproductive
and maternal health, including contraception
and abortion services. The law also required
unlicensed centers to notify patients that
they are unlicensed. The district court
and Ninth Circuit rejected the pregnancy crisis
center’s First Amendment challenge. Justice Thomas, writing for
a five justice majority, reversed. The disclosures, he said,
impermissibly compelled the center’s speech. The centers opposed abortion
and therefore should not be compelled to advertise
its availability. Justice Breyer wrote
a dissenting opinion in which justices Sotomayor,
Kagan, and I joined. Justice Breyer pointed
to a prior case that upheld the law
requiring doctors who perform abortions to tell
their patients about adoption services. Sauce for the goose must
serve the gander as well, Justice Breyer maintained. Several cases this term
concern election law. Perhaps topping the interest
list was Gill against Whitford, a partisan gerrymandering
challenge to Wisconsin’s state assembly map. A three judge federal
district court enjoined the plan, concluding
that its drafters had rigged it to favor Republican
candidates in violation of the First Amendment and
the Equal Protection clause. In an opinion by
the Chief Justice, the Court unanimously concluded
that the plaintiff’s claim failed at the threshold,
as they had not shown Article III standing to sue. To qualify as
plaintiffs, the court held, that plaintiffs must
show that they in fact resided in the
gerrymandered districts. Seven justices voted to
vacate the decision below and remand for the
plaintiffs to try again. It should not be too hard to
find willing plaintiffs in each of the gerrymandered districts. Justice Thomas, joined
by Justice Gorsuch, agreed that the plaintiffs
lacked standing, but would have remanded the
case with instructions to dismiss the complaint. Justice Kagan wrote
a concurring opinion that reads as a blueprint
for a complaint that could be successful. Justice Breyer, Justice
Sotomayor, and I joined her. One more case of huge national
and international interest, a challenge to the
president’s policy restricting the
entry into the United States of various nationals,
an order colloquially known as the travel ban– that ban had been subject
to various twists and turns during the term. We were set to hear argument
on the second iteration of the ban in October 2017. But that version of the
ban expired two weeks before the argument. So the case was removed
from the October calendar. The second iteration
of the ban was replaced by a third, a
more permanent version, a presidential proclamation. The Ninth Circuit affirmed
a preliminary injunction, generally barring enforcement
of the proclamation’s entry restrictions on
statutory grounds. The government sought
review, which we granted. And, on the very last
day this term, the case was finally heard,
the last argument day. In a 5 to 4 decision,
Trump against Hawaii, the Court reversed the
preliminary injunction. Writing for the majority,
the Chief Justice held that the ban did not exceed
the scope of the Executive’s authority under the Immigration
and Nationality Act. On its face, the
Chief Justice said, there was no infirmity
in the proclamation. The Court’s opinion also
rejected the plaintiff’s establishment clause challenge. But notably, the Court
took the opportunity to repudiate a 1944 decision,
Korematsu against the United States, a decision
that had upheld the internment of
Japanese-Americans during World War II. Korematsu, the court wrote,
was gravely wrong the day it was decided. Justice Breyer, joined
by Justice Kagan, dissented in the
travel ban case, contending that the
lawfulness of the ban was bound up with how the
government was applying the proclamation’s elaborate
system of exemptions and waivers. In Justice Breyer’s
view, more information was needed on that front. But in the absence
of that information, Justice Breyer and Justice
Kagan found the evidence of an anti-Muslim bias,
a sufficient basis to affirm the injunction. Justice Sotomayor, who I joined,
wrote a less temperate dissent. We would have held that
the proclamation violates the Establishment Clause,
because a reasonable observer would surely understand
that the proclamation, given its genesis, was motivated
by anti-Muslim animus. While the Court labored to
complete last term’s work, we also began to fill our
docket for the upcoming term. So far, we have granted
review in 38 cases, putting us well
ahead of the 26 cases we had granted by the end
of the October 2016 term. The 2017 term was weighty. I think you would agree. But it had some lighter moments. During the argument in
District of Columbia v. Wesby, a case about whether police
officers had probable cause to arrest some particularly
enthusiastic party-goers, Justice Kagan became nostalgic. In the course of
discussing the perspective of the reasonable
party-goer, Justice Kagan noted that once,
long ago, she used to be invited to parties
with hosts whom she did not personally know, and
that, long, long ago, marijuana maybe was
present at those parties. Another lighthearted
moment at oral argument this term, in the airing
of the Microsoft case– the one I mentioned earlier– Justice Kennedy asked
if a person in Ireland is involved in the retrieval
of e-mails stored there. No, counsel responded. A robot performs all the tasks. Justice Sotomayor, commenting
that her imagination was running wild,
wanting more information. “Who tells the robot what to do? And exactly what does
the robot do?” she asked. A listener could be forgiven for
wondering if she were observing a Supreme Court
argument or the latest episode of the television
show “Westworld.” Two advocate related
items of note– in City of Hays,
Kansas, against Vogt, a case about whether the Fifth
Amendment is violated when compelled statements are
introduced at a probable cause hearing, I was treated
to a superb argument by especially familiar faces. All three advocates, counsel
for the city, counsel for the individual
opposing the city, and the assistant to
the Solicitor General had served as my law clerks. The case ended on a low note. It was dismissed as
improvidently granted. A less familiar
face also appeared before our court last term, that
of Deputy Attorney General Rod Rosenstein. Reviving a Justice
Department tradition, the deputy AG donned
a formal morning coat and argued for the government
in Chavez-Meza v. United States, a case about a district
court judge’s obligation to explain certain
re-sentencing decisions. Deputy AG Rosenstein
can now claim a perfect 1-0 winning streak in
cases argued before the court. With Justice Gorsuch
recused, the Court ruled 5-3 in favor of the
government’s position. As a young attorney,
the Chief Justice quipped that only Supreme Court
justices and schoolchildren take the summer off. After a term of challenging
cases and issues, and an unusually high number
of five to four divisions, as I see it, we earned
our summer break, which enables me to be
here with you this evening. Thank you for being
such a patient audience. [APPLAUSE] Well thank you for those
observations, justice. I wonder if either you
or any of your colleagues were inclined to ask Deputy AG
Rosenstein whether his argument was the easiest day he’s
had since the beginning of his tenure. It felt like a day
off for him, maybe. So when I give US
Supreme Court updates, as I do at the
end of every term, I try and capture the term
in some way before digging into the details
like you just did. Is there a way you
would generally capture the term that just ended? Much more divisive
than is usual. I hope next term
we will get back to our usual 15% sharp division
rather than nearly 40%. An uncommonly divisive Supreme
Court term, you would say? Yes. It struck me as a term in which,
on more than one occasion, Justice Kennedy was
looking for an off-ramp. Was looking for? An off-ramp– Yes. So you mentioned how few were
the questions that he asked. I think most obviously is Gill
against Whitford in which, back when I clerked for
you in 2003-2004, we had Vieth against
Jubelirer, and Justice Kennedy held out the opportunity if
scholars or advocates could come up with a judicially
administerable doctrinal test for partisan gerrymandering. Maybe just then the Court
would allow such claims. And it seemed like the
issue was teed up this term. And then you had
the standing holding that you just mentioned. Another case that
struck me as similar is Masterpiece Cake Shop. Because that was a case
in which it was widely expected that the
Court would offer critical guidance about
how to adjudicate conflicts between the
anti-discrimination values protected by public
accommodations laws on the one hand and the First
Amendment’s free speech clause on the other. And it struck me, at
least, as more than a bit of a stretch to find a free
exercise violation to avoid saying anything about the
question on which the Court granted– But there will be
another opportunity. After the Masterpiece
Cake Shop case came down, we remanded another
case, the case of a florist who
refused to supply flowers for same-sex weddings. That case doesn’t have
anything like what was present in the
Colorado case, that is the suspicion that two of the
commissioners on the Colorado Commission were
hostile to religion– none of that in
the florist case. So we will see. Now it’s back in, I think, the
State of Washington Supreme Court. And we will have
another opportunity. There’s no doubt that there’ll
be an opportunity with respect to both of those questions. And it’s also clear
now, as you mentioned, that the court will be
differently constituted when those issues arise,
that Justice Kennedy will not be participating in
their resolution. Do you have a decision you would
point out as the Court’s best performance this past term,
the most important case in which you think the
Court got it right? I think the Carpenter case. Carpenter? The Chief wrote the opinion. And this is the
cell phone location case, where you can be placed
within a very specific area– used in this case to catch
someone who had robbed a store. And he was located in the
vicinity of that store several times prior
to the robbery. So I think that was
an important case. It doesn’t say that
law enforcers can’t get at such location information. It just says they have
to go before a magistrate and show probable cause. What about the Court’s
worst performance, in your view, the
case in which you were in dissent in which
you most would have liked to have been in the majority? Oh, it’d be hard to say. If you have to pick
two, that’s fine. Well, I wrote the dissent in
the Epic case, the one that says employees can bring their
disputes with their employer only before an arbitrator rather
than a court, and only one at a time. And the arbitration decision,
even if they would prevail, doesn’t count as precedent. I think that was, as
I said in my opinion, quite contrary to the
National Labor Relations Act. Can I ask you a question
about the Murphy case, in which you dissented? And you spoke about this. You focused on severability. But you dissented in
full, not in part. And you didn’t address whether
what Congress had done was commandeering and, if so,
whether the anti-commandeering principle the Court
articulated in 1992– the Court held that it’s
impermissible, commandeering for Congress to require
states to enact, administer, or enforce a federal
regulatory program. I think it was gun– the federal law
enlisted local sheriffs. That was ’97 in Prince. Yes, that was Prince. New York was ’92, the disposal
of radioactive waste, right. But you didn’t
explain in Murphy. Did you think this
was commandeering? And if so, did it matter? In other words, it
appears at least that justices Breyer
and Kagan endorse the anti-commandeering
principle. And it wasn’t clear to
me from your dissent. It was unspoken, but I
relied on the position that I took in the Prince case. Which rejects the
anti-commandeering principle– Yes. OK yeah, that makes– But I thought that
this was a simple case. There was a clear answer. The federal law was “no
operation of sports gambling.” And it seemed to me
that it was eminently severable from the
licensing and authorizing. All right, let me switch gears. I have more questions about
the term, but for another time. How has the court changed
over the quarter century that you’ve served on it? How is it different
than when you started? Well one thing that
isn’t different is the collegiality
of the court. That remains. Of course I miss my
favorite sparring partner, Justice Scalia. But you don’t see that
kind of friendship existing in our Congress anymore. It once did. I hope it will again. You might recall,
Neil, that, when I was nominated by President
Clinton, the vote was 96 to 3. It’s not that way anymore. And Justice Scalia, I
believe, was unanimous. Yes, he was unanimous. Do you think the court is– its relationship to its
own precedents has changed? Do you think the court
is more, or less, or about the same in
terms of its sensitivity to personnel changes? To personnel changes? All the outward manifestations
are as they have been. One is that the retiring
junior justice, the person who has served as junior justice
and has been replaced, gives a dinner in honor of
the new member of the court. The Chief still buys
some wine, and we have a happy birthday chorus
for every justice’s birthday. We still have our delightful
musicales twice a year. But of course, with every change
in personnel, it’s a new court. But it sounds like the court
is no less collegial than it was when you first joined it. Yes. How is Justice Gorsuch different
from your dearly departed friend Justice Scalia? We’ve heard a lot about
their similarities jurisprudentially,
methodologically. How are they different? Justice Gorsuch was a law
clerk when I first met him. When I came on board,
Justice Gorsuch had been engaged by Justice
White as Justice White’s clerk. So when Justice
White stepped down, Justice White generously
gave his law clerk to Justice Kennedy. And that’s how Justice
Gorsuch ended up clerking for Justice Kennedy. But I can remember him from the
days when he was very young. And there is no one
on the court that was a match for Justice
Scalia’s sense of humor. Are there non-obvious
ways in which the court is different without
him, without Justice Scalia? Well his spicy
opinions are no longer. That’s why I said non-obvious. Do you, or as far as you
can tell, your colleagues– I’m just listening to you
go through the opinions from the term. And the number of cases that
people are paying the most attention to, in which
you have the five nominees of
Republican presidents lined up against
the four nominees of Democratic presidents– is the court a more
polarized, even partisan institution, than it once was? Do you worry that
it appears that way? Carpenter was the exception. In every case this term
where the court divided 5-4, Justice Kennedy
was with the five. But the Chief’s opinion
in Carpenter, I think, was a very fine one. Obviously I think that,
because I joined it. And another case that
didn’t divide on party lines was the sales tax case. Wayfair– Yes. Yeah, yeah. The reason I ask
is because I worry. I worry that, at least in terms
of public perception, which is a powerful source of
the Court’s legitimacy, that the the more it
splits in these kinds of predictable 5-4,
R-D ways, the more that political scientists
are shown to be true, when the law professors
tell them “you actually have to
read the opinions.” And they say “we don’t
have to to tell you what the outcome is going to be.” Not in many of the
cases, but in the ones that people care about most– the more that that
keeps happening, the Court’s legitimacy, the
Court’s reputation suffers. The returns aren’t in. This was one term. And it did have a
more than usual number of high profile cases. If you will remember
the old Chief, I could count on then
Justice Rehnquist dissenting from every case in
which I prevailed, except the Wiesenfeld case,
which even he couldn’t resist. But toward the end of the
term, think of his term tenure on the Court. Think of Miranda. I don’t know how many times
Justice and then Chief Justice Rehnquist had
criticized Miranda, then saying the justices made it up. It’s not in the Constitution. Then we were confronted
with the case that asked us to overrule Miranda. The Chief assigned the
opinion to himself. And he said, “we will
not overrule Miranda. It has become part of the
culture, and it’s working.” The old Chief also
wrote the decision upholding the Family
Medical and Leave Act. I brought that opinion
home to my husband. And his comment was,
“Ruth, did you write that?” So as long as one
lives, one can learn. So you’re holding
out the possibility that justices who are there,
say two decades from now, may have different views
on important issues than they currently articulate? Yes, at least one or two. At least one or two justices,
or one or two views? [LAUGHTER] All right, well I– that’s the beauty. I ask the questions, and
she decides whether she’s going to answer them. All right, so those
were heavy questions. And now I’ll turn
to lighter matters. And I’ll begin with a
question that I am often asked by people who know
of my connection to you. So Justice Ginsburg,
how are you feeling? I met my personal
trainer yesterday. [APPLAUSE] We will have another
session tomorrow. Have you seen any good
documentaries lately? I was watching one recently. It reminded me of you. That shows part of the routine. There is another segment
in the Steve Colbert show. We were going through
the routine side by side. And I looked down
and saw he was doing his push-ups on his knees. I won’t touch that. What’s your favorite
part of the documentary? My conversation with
my granddaughter. Do you have any guesses
on what my favorite part of the documentary is? What? It’s you watching Kate McKinnon
act not at all like you, and watching you laugh. And then you’re asked a
question that my own daughter has asked me, which is
“are you at all like that?” And you said, “no, not at all.” So I thought that was hilarious. I also thought the documentary– well, it did a lot of
things very well– but I think capturing your
relationship with Marty and how much love there
was from beginning to end, and how much he supported
you in a very real way. He’s made possible the career
that you’ve been able to enjoy. That’s also captured
in a new film that will come out on
Christmas day called “On the Basis of Sex.” The screenplay was written
by my nephew, the youngest son of my husband’s sister. What do you make of
your cultural celebrity? It’s absolutely amazing. I am 85 years old,
and everyone wants to take a picture with me. [APPLAUSE] I want to hear more, because– Now the best story about
my celebrity status goes back some years. It was the year of Bush v. Gore. And Marty and I
were in New York. We went to the theater. And at intermission, everyone
stands up and applauds as I come down the aisle. And Marty whispers to me,
in not such a hushed tone, “oh, I forgot to
tell you, there’s a tax lawyer’s
convention in town.” That’s right. Right, look at all the people
who came to see me tonight. So I miss that. Do you think there’s– I look for meaning in things. And you, and what you stand
for, and that it’s happening, say, over the past– putting Bush versus Gore
aside, the last 5, 10 years– I mean, I think it says
something about you. But it also says something
about the culture and the constitutional
culture, that you would be so recognizable
by people who don’t follow the Supreme Court. There are some efforts
to promote understanding about government, how it works. And one of them is Justice
O’Connor’s iCivics project, which has been very successful. It’s been adopted in grade
schools across the country. Do you think civics is less
emphasized than it used to be and less emphasized
than it ought to be? It’s less emphasized
than it once was. And that’s why Justice O’Connor
began the iCivics program. I was thinking
about your comments a little while ago about
the kind of friendship that you had with
Justice Scalia. And there used to be such
friendships in Congress, but not so much anymore. And I wonder, if you start
when people are young, and a civics education project
is a nation building project– there has to be ways– I don’t think things will
get better on their own. There has to be a way to
bridge the divides that have gotten substantially worse
over the course of your time on the Court. And perhaps civic education
is one way to do that. Another way– this has been done
in a number of high schools– is to have moot courts, to take
a current Supreme Court case, perhaps simplify it, and give
the students an opportunity to argue both sides of it. Because I think
it’s true that you can’t be an effective dissenter
unless you really understand the other side’s argument. And you’ve made that
point consistently, that Justice Scalia
made you better, made your opinions better. I said, if I could
choose who would write the dissent to majority
opinion assigned to me, it would always be Scalia. Because he pointed
out every weak spot. He was very smart
and very sharp. And then I had an opportunity to
fix it up and make it a better opinion than it was when
I first circulated it. And what is your
secret to never having taken his barbs personally? I just knew him too well. And I said on many occasions,
“this is over the top.” If you tone it down, you
will be more persuasive. That was advice he never took. But that was just his style. And no one reading
his VMI dissent would believe that he
had come to my chambers and given me an
unfinished draft he wasn’t ready to circulate to the
Court, but just to give me the additional
days to answer it. What did you learn
from your parents? Well I learned from
my mother the– two things– one,
be independent– that idea was, it would be great
if you meet Prince Charming and live happily ever after. But be able to
fend for yourself. That was one thing. And the other that has
stood me in very good stead all my life– she summed it up
as being a lady. Being a lady is someone who
does not give way to emotions like anger, remorse, jealousy. Because those emotions
just sap your energy and detract you from
doing the things that you should be doing. So in attendance this
evening are the students in the DC Summer Institute. And most of them are
thinking about law school. Any advice for them as they
chart their own path in life? Well even in the ancient
days when law schools were totally Socratic, I loved
my experience in law school. And I found the difference
between college and law school– in college I was
passively taking notes, listening to a professor. But in law school,
I was constantly engaged in the colloquy
that was going on. And what about in
terms of a career, looking back on a
meaningful career? There are few people who know
exactly what they want to do. Marty knew. Even before he
took a tax course, he knew he wanted
to be a tax lawyer. When I was going to law
school, I wasn’t sure what– I mean, I wanted to be a
great civil libertarian. But you also have to
have a job that pays. So it’s OK not to know? So I didn’t know
what that would be. And then I had the fantastic
good fortune of being alive and a lawyer when the women’s
movement revived in the United States. And I could help nudge
along that social change. Have you sorted out your plans
for the next five years or so? Well I answered
just last weekend that Justice Stevens hasn’t
stepped down when he was 90. So if I aspire to
that same tenure, I have five more years to go. [APPLAUSE] Well, if at the age of 90 you
are looking for a teaching job, I can promise you that Duke
Law School will give you very serious consideration. [APPLAUSE] Last question, and I think
we’ll leave it at this– you are not done. We’re looking ahead,
not just back. At some point, like everyone,
your time on the court will be over. How do how do you most
want to be remembered? As someone who did the best
she could with whatever talent she had to make
things a little better for people less
fortunate, to move society along a democratic path. Well Justice, thank you six
times over for being with us, for making this possible. And I am grateful to you. And on behalf of the entire
Duke community, thank you. Thank you very much. [APPLAUSE] Thank you. And everyone, please be seated.

13 Responses

  1. Vivian Eastwood says:

    Bizarre that she claimed the Court had too many "divisive" 5-4 decisions last term, but then names as the Court's finest decision the Carpenter case, which was also 5-4.  Hard to reconcile those statements.

  2. michael andrews says:

    she got her ass kicked this term. tons of 5-4 losses

  3. Mister Silver says:

    Check this out: Ruth Bader Ginsburg Shirt RBG T-Shirt Feminist Political Tee RBG… https://www.amazon.com/dp/B07H95MZ2H/ref=cm_sw_r_sms_awdb_t1_b9LMBbY3NMTC2

  4. Chris Gould says:

    The Justice looks a lot better here than at:
    https://www.youtube.com/watch?v=3qsXPhOPxiU&t=1455s
    I predict her next public appearance will closely watched to gauge her health. If she does not appear in public that will also cause speculation about her health.

  5. Rickey Williams says:

    Simply; that is one creepy woman. She easily could be cast in a Hollywood horror flick.

  6. Walter Kelly says:

    In 2008 the Heller decision made clear what it meant to bear arms. Scalia quoted Justice Ginsburg's writing in a previous case.  From cornell.edu

    Justice Ginsburg wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment … indicate[s]: ‘wear, bear, or carry … upon the person or in the clothing or in a pocket, for the purpose … of being armed and ready for offensive or defensive action in a case of conflict with another person.’ ”

    “..in the clothing or in a pocket” is carrying concealed.

    Yet it was stated that states can have restrictions:

    "Longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

    Yet, this doesn’t pertain to the carry of style, bearing of appropriation, or limitations supported by curtailment of classes or permits. And like in Heller, a firearm held in an inoperable fashion by state law is an Infringement and therefore Unconstitutional.

    So why are states still allowed to have felonious laws enacted against a citizens right to carry concealed without a permit?

    I mean if the 2nd Amendment doesn't allow the Uninfringed right to carry concealed, then every state that allows Constitutional Carry is in violation of the precedent set by the 2nd Amendment and must have policies to govern and restrict said concealed carry supported by classes and training, yet no such reality exists….

    So again, why has RBG and all of SCOTUS failed to protect the American people against Tyrannical State laws which Infringe upon citizens Unalienable Rights?

  7. PugFace Media says:

    She went full on Pelosi so many times. She can’t stay awake!

  8. PugFace Media says:

    She went full on Pelosi so many times. She can’t stay awake!

  9. D Adams says:

    She makes a silent statement by refusing to allow her gray hair to show (no way she has her natural hair color since she's in her 80s!). This tells me she is trying to take focus away from her advanced age, the probably age-related dementia she may be diagnosed with and questionable ability to make competent decisions.

  10. NPC 010048920101837620 says:

    I just saw a video of her speaking at the end of Spetember 2018, she does not look this good a few months later. She almost appears like she is near the end. ORANGE man bad gets 3 SC justices in 2 years!

  11. Rickey Williams says:

    Now liberals winning the House, watch the DEMS fail to get anything
    accomplished but Politics. WINNING! (Ohio) Trump/Pence/Kelly/Mattis/Pompeo/Bolton/Haley,
    Huckabee-Sanders 2020. Promises Made/Promises Kept. Simple as that. Took
    a NON Politician (Whom needs no $) to MAGA. Finally a POTUS; a friend
    to Military, Police/Law Enforcement, Fire, Veterans, Border/ICE, First
    Responders, Miners, Gun Citizens, Church, Steel/Aluminum Foundries,
    Truckers, Bikers, Farm/Ranch, Oath Keepers, and NASA/Space Exploration,
    and American Designed/Made Products. Reopening USS Steel Mill in
    Illinois closed during Obama, making Volvo's in SC, Chrysler coming back
    to Michigan, and here in Ohio, getting a new steel mill/jobs. The do
    NOTHING NObama/Clinton Lazy days are over. NEVER GIVE UP ON YOUR
    COUNTRY. Get the Vote out. History in the making. This Ohio Family,
    isn't getting off the Trump Train. Be proud, spread the word. Fight the
    Good Fight!… and hell yes we are keeping our guns, and Constitutional
    Rights.

    God will take care of clinging onto life, Liberal SCOTUS
    Ruth Ginsburg. Come on SCOTUS #3. 
    New RED Senate ready to approve another Justice #3.

    "The tree of liberty must be refreshed from time to time with
    the blood of patriots and tyrants." Thomas Jefferson.

  12. Hoa Dang says:

    Justice Ruth Bader Ginsburg should die to save tax payers, God is punishing her by harm Pre.Trump and American ! she should go to hell !!!

  13. largraf says:

    There're no men with balls on the SC. When an old woman is allowed to influence the decisions & stature of wise men, the culpability isn't the woman's, it's the men's. Just like in the Garden of Eden when Adam obeyed Eve's directive, overturned God's authority structure, allowing a woman to overrule their wisdom overturns the entire society, & don't think Eve (Ginsberg) doesn't gloat about that.

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