Ruth Bader Ginsburg Interview 5

158
Oral History of Justice Ruth Bader Ginsburg
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is Dr. Maeva Marcus, and the
interviewee is Justice Ruth Bader Ginsburg. The interview took place in Justice Ginsburg’s
Supreme Court Chambers on September 3, 1997. This is the fifth interview.
Dr. Marcus: At the end of the interview last year, we were discussing your colleagues
on the court of appeals. By my count, you served with twenty-two other
judges while you were there. Would you care to comment on any of
them? I know that we talked about Judge McGowan the last time around,
and you had a few comments about the others, but you said you would
think about interesting stories over this year, if you can think of any.
Justice Ginsburg: I spoke about Skelly Wright and about Ed Tamm, they were the closest
friends on the court in the years I was there. I don’t recall any particular
stories. I just had a letter from Malcolm Wilkey, who was my next-door
neighbor at the D.C. Circuit for some years.
I think I commented that the biggest surprise for people who were
not close to the court would be that friendships did not divide on party
lines, that the Republican appointees were not particularly close, and some
of the Democrat appointees were not particularly close.
Dr. Marcus: That’s interesting, because I had a couple of questions that I wanted to ask
you about politics, which is that you do hear – I’ve always heard, since I’ve
been in Washington – about the political factions on the court of appeals.
I remembered you telling me last time that friendships didn’t divide along
political lines, but was there a division, were there factions in terms of
voting blocks, I guess, in terms of working relationships, rather than159
friendships? Are the stories that we always used to hear about the court,
the D.C. Circuit, true?
Justice Ginsburg: More so perhaps in my later years there than the early years. Skelly
Wright, for example, was known as a great liberal judge, and yet if you
looked only at his decisions in the criminal law area, you would come to a
quite different conclusion. Perhaps that reflects his background as a U.S.
Attorney when he was a relatively young man.
Dr. Marcus: Do you find that these kinds of factions, as they developed over the years
that you were there, created a lot of conflict on the court or not?
Justice Ginsburg: No. Think of the period when Bob Bork and Nino Scalia were on the D.C.
Circuit together. One notable opinion, it was the Evans and Novak case, a
suit for libel brought by Bertell Ollman –
Dr. Marcus: I remember, from Maryland.
Justice Ginsburg: Yes. He was proposed to be the head of the – was it the history
department or the political science department?
Dr. Marcus: Yes.
Justice Ginsburg: Political science department. They wrote a column about him, and he said
it was defamatory. Bob Bork wrote a concurring opinion in favor of
Evans and Novak that is the most pro-press opinion anyone could have
written. Scalia was on the other side; he said that there was liability for
libel in the days when the Constitution was new, and so there is today.
And Bork said, yes, there were libel judgments in those days, but not of
the size, not of the damage potential of today’s judgments. So the First160
Amendment value, to be sufficiently protected, needs to be kept in tune
with our times and not the times of two centuries ago. It’s just a gem of an
opinion. I joined it; no one else did. But one would not expect that to be
Bob Bork’s position when there was such a clear position for the
“conservative” on the other side.
Dr. Marcus: I think that’s a very, very interesting point. When you talk about these
other judges, can you categorize any of them by sort of styles of judging,
whether they’re loners or that they always disagree or they try to negotiate
an opinion for the court? Are there particular styles that these people
have?
Justice Ginsburg: There wasn’t much negotiation and not too much exchange about the
content of an opinion. There were notable exceptions. It was always a
pleasure to be on a panel with Carl McGowan, because he was willing to
talk for a long time about the case, to give you comments on an opinion
draft if you asked. But in the D.C. Circuit more than in this Court, people
tended to prefer their own opinions and did not want too much in the way
of comment from other people.
Dr. Marcus: I didn’t know that. I have a couple of questions –
Justice Ginsburg: In fact, I will tell you one story.
Dr. Marcus: Okay.
Justice Ginsburg: There was an opinion circulated by Ed Tamm’s chambers. It was a time
when he had been ill, it wasn’t a very good opinion. I rewrote it. He was
furious! He said, “No one appointed you to be my editor.”161
I was distressed that I had upset him. I wrote him a note, then
went to talk to him and said, “I read this opinion, I knew it wasn’t you. I
knew you had been ill. It looked to me like a typical law clerk’s product.
So I regarded myself as doing what I know you would have done with that
draft if you were well.”
He didn’t say anything. Then a few days later, he came to my
chambers and just shook my hand. That was his way of saying he forgave
me.
Dr. Marcus: That was nice. That’s good. When you got to the D.C. Circuit, did you
feel that new judges were treated differently from more senior judges?
Justice Ginsburg: Four new judges came on very close in time (Wald, Mikva, Edwards,
Ginsburg), and I didn’t have the sense we were treated differently. As I
said last time, Judge Bazelon was elated with the four newcomers. He
regarded us, in a way, as his grandchildren. But there was no
apprenticeship and no endeavor to give us the lightest assignments.
Dr. Marcus: Are there jobs for a junior judge on the D.C. Circuit, the way there is a job
here with for the junior justice?
Justice Ginsburg: No. The only special thing about being junior is where you sat. The
newest judge sat to the left of the presiding judge, and the other judge sat
to the right.
Dr. Marcus: When you had a conference, was there any pecking order in terms of
speaking?162
Justice Ginsburg: Only when we had an en banc case, and then we would go around in
seniority order. But the panel, the three-judge panel, was a much less
formal arrangement. The presiding judge sometimes spoke first,
sometimes the newest judge, sometimes the one in between. There was
really no formula for those conferences.
Dr. Marcus: Are there any unwritten rules that you have to follow in order go be
respected and considered a team player on the D.C. Circuit?
Justice Ginsburg: There really wasn’t a team. Getting your work done promptly was helpful.
But the D.C. Circuit, in the 1980s, tended to be slower than some of the
other circuits. It did not have the kind of esprit that existed in the Second
Circuit, where there was not too much time between argument and
decision.
The D.C. Circuit’s hardest working judge took the longest to get
out opinions, and that was Spottswood Robinson, who was a perfectionist.
He would keep opinions not for months, but for years in some instances.
We created a rule – we called it the September Rule – to deal with that,
and it was, if September comes and you have three or more decisions
assigned to you six or more months ago, then you cannot sit until you
become current. The idea was that there would be peer pressure to work
faster. The only judge to whom that rule was ever applied was
Spottswood Robinson, and the way he works, the rule just wasn’t
effective. This was a man who literally worked around the clock. There163
were nights when he never left his chambers. But he was meticulous and
he couldn’t let an opinion go until he felt that it was perfect.
Dr. Marcus: So in his case you didn’t adhere to the rule? He was permitted to sit
during the year, even if his opinions were –
Justice Ginsburg: No, we instituted the rule for him, and we invoked it on a couple of
occasions.
Dr. Marcus: But it didn’t spur him on to getting the opinions out?
Justice Ginsburg: No, it’s just the way he was. I think he had been that way as a lawyer and
he was that way as a judge. His opinions are treasure troves because he
would cite every opinion in point. He had enormous string citations. His
style and mine were quite different, because I tried to pick out the best
case to illustrate the point, and not supply a treatise. So opinion-writing
styles were quite varied on the D.C. Circuit, and there was no interchange
among the law clerks the way there is here, as a result of the cert pool at
this Court. The law clerks tended to work only in and for a particular
judge’s chambers.
Dr. Marcus: Do you think – I have a whole bunch of questions about law clerks, but do
you think that the cert pool tends to make these law clerks approach things
more uniformly in all of their tasks?
Justice Ginsburg: I think it tends to make them more careful, because they know that what
they are doing will be looked at by their peers in other chambers, by
justices in other chambers. The law clerks get to know each other through
that cert pool, in addition to their happy hours on Thursday afternoon.164
Dr. Marcus: And there wasn’t at all that kind of happy hour at the court of appeals?
Justice Ginsburg: No.
Dr. Marcus: Nothing at all?
Justice Ginsburg: The clerks who had some sense of togetherness were the ones who worked
for the chief staff counsel. They were originally called court law clerks
and now they’re called staff attorneys, or at least when I left they were
called staff attorneys. They dealt originally with all the motions. Then
later they also dealt with the cases that could be disposed of summarily.
Over the years on the D.C. Circuit, that operation became larger
and larger. More cases were decided without argument. My early years
there, almost any case, with the exception of a prisoner’s petition, could be
argued orally if the lawyers so chose, as they invariably did. But later,
even the D.C. Circuit had to restrict the argument calendar and have a
procedure for weeding out the clear cases where there was plainly one
right answer.
Dr. Marcus: Did it take you a long time to feel comfortable as an appellate judge?
Justice Ginsburg: Less time than I thought. The only area I had real concern about, as I
mentioned last time, was administrative law and the blockbuster cases the
D.C. Circuit has. But in the other cases, I had no large adjustment
because, as I said before, law teaching and appellate judging are so much
alike, the exercise of preparing, picking out your position, stating it in
writing.165
Dr. Marcus: The fact that you now were going to have an effect on real people, you
weren’t just teaching a law class, did that make you think in a different
way?
Justice Ginsburg: It encouraged me to be as clear as I could be, but in judging, as in
everything else, it’s your judgment compared to what? And I could look at
my colleagues and say, with no false modesty, I think my judgment is at
least as sound as theirs. It’s a job that needs doing, and I am as well
equipped to do it as most people in that job.
Dr. Marcus: So you really did settle in very quickly.
Justice Ginsburg: Yes.
Dr. Marcus: Was it different working under different chief judges?
Justice Ginsburg: Yes. We were all concerned when Spotts (Spottswood Robinson) became
chief, and we encouraged him to take half a load during that time. He
didn’t restrict the panels on which he sat. He was a less effective chief
than, say, Pat Wald, who was a wonderful chief. She’s super efficient,
very diligent, so things really got done and done right in the years she was
the chief. It was great to have Carl McGowan as our chief, but it lasted for
such a short time.
Dr. Marcus: What kinds of things do the chief judges do that affect you in your work?
Justice Ginsburg: The chief judge is mostly an administrator. The chief has no more power
than the other judges, but is responsible for making sure that the clerk’s
office is running efficiently, that the chief staff counsel’s operation is166
running as it should, that all the things that facilitate the judges’ work are
done properly.
One of Pat’s major projects when she was chief was to improve the
quality of the cafeteria, so people would feel they were in a pleasant place
and not in a dungeon. The art collection, posters that she and her husband
selected, brightened it up. The quality in the food, while not great, was
better than it had been before. So it’s all the amenities. It’s seeing that the
facilities are there for the judges to concentrate on the job of judging, and
that personnel problems are nipped in the bud. That’s what the chief judge
did primarily. But there was no more assigning power than any presiding
judge, except for the en banc procedure, and the chief – if the chief is in
the majority – would make the assignment. Many more things are chief
matters here (at the Supreme Court) than on the circuit court.
Dr. Marcus: What do you think is the most important task of an appellate judge?
Justice Ginsburg: That’s a hard question to answer, because it’s really a process. It’s having
an appreciation of what a judge is in a legal system, not a legislator and
not an academic, but someone who is a major participant in the sound
evolution and development of the law, in making the rules both reactive to
the people whose problems are governed and clear enough to be
comprehensible to others who have to work with those rules. It’s a process
of coming to a sound decision and then explaining it in a way that will be
best understood and implemented in future cases.
Dr. Marcus: On the D.C. Circuit, are civil and criminal cases handled differently?167
Justice Ginsburg: No, not in my early years. The D.C. Circuit had relatively few criminal
cases. I think well under 20 percent of the cases were criminal appeals.
And the reason was that the U.S. Attorney for that circuit is also the chief
prosecutor for the local courts, so many crimes could be indicted under
either the D.C. Code and tried in the Superior Court or the U.S. Code and
brought to the district court.
The garden-variety cases, criminal cases, tended to be brought in
the Superior Court. Sometime around my middle years on the D.C.
Circuit, that changed for two reasons. One is the “get tough on drugs”
notion so cases that would have been local cases became federal cases.
The other is the federal sentencing guidelines under which sentences
became harsher in the federal court than in the D.C. Superior Court.
The prosecutor used the difference in the penalties as a bargaining
chip with the defendant to say, “This is what we propose as a plea bargain
in the case we have pending against you in D.C. Superior Court. Now, if
you don’t like it, there is the possibility that we can reindict you in the U.S.
District Court, where, under the sentencing guidelines, you will end up
with a much more severe sentence.” That kind of power in the hands of
the U.S. Attorney was peculiar to the District of Columbia because there’s
no other place where the state prosecutor and the U.S. Attorney are one
and the same person.
As a result of the “get tough on drugs” notion and the federal
sentencing guidelines, the D.C. Circuit began to get more and more168
criminal cases. It was much harder on the district court than it was on the
court of appeals. The district court judges began to see one-at-a-time,
single-defendant cases, drug courier cases, the same pattern again and
again. Someone was picked up at Union Station or the bus terminal,
found with X amount of crack. It was disillusioning for trial judges. They
thought they were there to preside over important federal cases, and
instead they’re feeling like police court judges.
The court of appeals could handle those cases by putting them on a
fast track, by disposing of them without oral argument, so even though the
numbers of criminal cases went up in the circuit, the drain on the appellate
judges’ time didn’t begin to compare with the toll on the district judges.
Dr. Marcus: You bring up the point about oral arguments. You mentioned before, too,
that the staff attorneys can decide certain cases that will be disposed of
without any argument where they thought there was clearly a right answer;
they didn’t think it worthy of oral argument. But is there any other
procedure for deciding which case will have oral argument and for how
long? Is there a set time?
Justice Ginsburg: Yes, there is a procedure, and I may not remember it in all its detail. I
should clarify that the staff counsel made proposals, and what they would
do in these easy cases is they’d present to us the packet of the briefs, along
with a proposed disposition. I don’t think I ever approved a proposed
disposition without reading the underlying papers, and very often, even169
though I agreed with the bottom line, I changed the way the memorandum
was written.
The screening judge – every three-judge panel has a screening
judge – sends around a screening memo for the cases that will be argued
and recommends that this case have fifteen minutes for oral argument, that
case, twenty minutes. The standard time was fifteen minutes. If the case
were a bit more complicated, maybe twenty. If it was an easy case, ten.
We never had, as the Second Circuit sometimes does, five minutes. The
allotted time went from ten minutes to twenty minutes, except for these
off-the-chart complex cases, for which we sometimes reserved the whole
morning or whole afternoon for oral argument.
Those time limits weren’t rigid, because in the D.C. Circuit, if any
judge were interested in a question, in pursuing the inquiry further, that
judge would be indulged. Not as at the Supreme Court where, when the
red light goes on, that’s it, whether it’s the Justice speaking or the lawyer.
But in the D.C. Circuit, a case could be marked for, say, ten minutes and
end up taking a half hour a side.
Dr. Marcus: Something you said brings up my whole next series of questions, which is,
how are the panels in your court made up, and what exactly are their
tasks? You sort of alluded to it in the sense that do you get a set number
of cases which that particular panel then decides on how that case will be
treated? I mean, you don’t get a set number of cases that are going to be170
argued orally; it’s the panel’s decision to say yes or no, how long, how
short.
Justice Ginsburg: Yes. Concerning the cases that were not going to be argued, in my early
years on the D.C. Circuit, everything would come to the panel, and the
panel would decide. The screening judge would make the
recommendation. Later, as the numbers went up and as the criminal
appeals increased, the staff counsel weeded out, before they would ever go
to a panel, the cases that would be disposed of without oral argument,
always subject to a check by the panel sitting in motions. Those easy
cases were then taken off the regular track and referred to the motions
panel. We were assigned to motions panels for a month at a time. We
would have regular sittings also during that month, so motions were not an
exclusive diet. You had the same responsibility for panel service during
the month you were in motions. I have no idea how the D.C. Circuit is
operating these days.
The screener on the panel made the time allotment for the cases
placed on the argument calendar. How were those calendars put together?
It was all done in the clerk’s office, and it was done in such a way that it
was not possible for any judge to pick a case or any lawyers to pick a
judge. The calendars were filled many months in advance, then the panels
were assigned, but it was done in a way that no judge could select the case
or an area for that judge’s sitting.171
Dr. Marcus: Is it the panel alone that decides whether a case receives the full opinion-
writing treatment or is issued per curiam or any of the other forms that
judgments are disseminated?
Justice Ginsburg: Yes. The D.C. Circuit panel conferred immediately after oral argument.
So if we sat for a morning, we could go to conference without even a
break for lunch. We discussed the cases; we discussed which ones need
opinions, which ones could be disposed of without opinions; whether by a
judgment order, sometimes with a one or two sentence explanation, or by
a judgment supplemented by a one- to five-page memorandum explaining
the decision. Those dispositions without full opinion were for the benefit
of the parties, they were not treated as precedent.
Dr. Marcus: Do you think that too many cases are resolved by order? Or maybe too
few, I don’t know. [Chuckles]
Justice Ginsburg: In an ideal world, you would have a full statement of reasons in every
case, but then we would have a backlog, and there’s no question which is
more important. The court has got to stay current, because you can have
the most beautiful opinion in the world, if it’s twelve years late, it doesn’t
mean anything; the world has gone on. So the court has to decide cases in
a reasonable amount of time. Of course, there are so many more cases as
Congress creates new federal crimes or civil claims for relief, it’s
necessary to have this fast track.
I think that the discipline of writing out one’s reasons is
tremendously important. Sometimes the expression is used “It won’t172
write.” There are opinions that you think, after the oral argument, will
write, and it turns out when you dig in a little deeper, that the preliminary
judgment was wrong and the case may even turn around 180 degrees.
More than minor adjustments will be made.
So, unless Congress takes seriously what many federal judges have
urged, that federal jurisdiction ought to be cut back – not on political
grounds as in the days when there were proposals not to let the federal
courts hear anything about school prayer, busing, abortion – but cases that
could be handled well in the state system, that don’t require, in addition, a
federal forum.
There is no reason for the tremendous drug business Congress has
given to the federal courts. These are cases that for years were handled by
states only. But one of the things Congress does when people get upset
about car theft, for example, is to create a federal crime. It looks good, it
looks like the legislators are tough on crime, and it doesn’t cost any
money. It just throws more cases into the system. The result is that in our
lower federal courts, more and more things are being done by people other
than the judges. It is, I think, an unhealthy situation.
Now, this Court (the Supreme Court) is immune from all that,
because we have almost total control of our cases and we make sure that
we don’t have too many decisions to write. But the lower courts don’t
have that luxury, and they can receive aid from only one source, from
Congress, to take out some of the cases that don’t need to be federal cases.173
Dr. Marcus: This is jumping ahead a little bit in my questions, but I had it here. Did
you ever advise Congress on substantive issues like jurisdiction?
Justice Ginsburg: The only time I did, I testified on the bill to create an intercircuit panel that
was supposed to relieve this Court (the Supreme Court) of an excessive
burden by deciding some of the cases on which the circuits were divided.
I testified against that because it was, first of all, looking to the one court
that didn’t really need any help. If this Court has too many cases, it’s a
self-inflicted wound.
What Congress should have done – and did do – was to do away
with most of this court’s mandatory jurisdiction and turn almost everything
into petitions for certiorari, that is, discretionary review. Once Congress
did that in 1988, there was no longer any problem of excessive cases here.
But what Congress continued to do to the lower courts was to create more
federal crimes. I mentioned car theft. There are so many more, so many
cases have been put into the federal court, so the legislators can go back to
their constituents and say, “Look what we did. We’ve taken this
bothersome thing and made it a federal crime.”
Dr. Marcus: Do you think judges advising Congress is a proper thing to do?
Justice Ginsburg: It depends on what the advice is on. Technical questions like the structure
of the federal court system, like what should the limits of federal court
jurisdiction be, so that the federal courts will do the business they were
created to do effectively, yes, I think that’s a proper role for a judge.174
These are nonpolitical questions. They concern the court’s processes, the
load that the courts can successfully handle.
Procedural rules in the federal system come out under the aegis of
the U.S. Judicial Conference, and then Congress can reject or uphold
them, but Congress doesn’t generate those rules. The courts make their
own rules of procedure. And something else that courts can do. Congress
turns out many more statutes today than it once did and they are often
dense. Circuits may interpret them differently. That was the problem
Chief Justice Burger had in mind when he proposed an intercircuit panel
to deal with circuit splits. Much more sensible, it seems to me, is a
mechanism that gets these splits before Congress, before the committee in
whose domain the law falls, so that the committee can see how the courts
are divided. Court A said, “Congress meant X,” and court B said,
“Congress meant Y.” The committee can then say, “Now we see what the
problem is in implementing this law that we passed, and it’s our
responsibility to say which is the proper reading.” Is the First Circuit
right, say, or the Tenth Circuit? Instead of having these conflicts resolved
by the U.S. Supreme Court, Congress ought to adjust the laws when the
circuits are divided.
There are politically hot questions on which Congress deliberately
passes the buck, issues on which Congress is deliberately vague. But I
have seen a great number of cases where Congress has just been a little
careless, where it would be easy to make the law clear. So my175
recommendation, instead of an intercircuit panel, was that Congress ought
to pay attention to these circuit splits, not just to decisions of the Supreme
Court. The judges can help create that kind of mechanism. In fact, they
have. Judge Coffin, on the First Circuit, was instrumental in Bob
Katzmann’s project at Brookings, to try to get Congress to focus on these
dense, ambiguous laws.
Dr. Marcus: I think this is a good place to stop and turn the tape over.
Dr. Marcus: Before we got off talking about Congress, we were talking about panels in
the D.C. Circuit. I want to know if the panel also decides on publication.
Is that a panel’s prerogative to say whether an opinion will be published or
not?
Justice Ginsburg: Yes. Nowadays, published or not published is meaningless, because
everything is published. Everything was always public. The court doesn’t
issue any judgments that aren’t public. But in the days before computers,
“public” meant it was in the court’s file, and you had to come down to the
court to see it. Now everything is on Lexis and Westlaw instantly. So
everything is published. It may not be in the Federal Reporters, but it’s
published someplace. It’s available to readers without coming down to the
clerk’s office and checking the file.
The difference is that opinions not put in the official Reporters –
not put in Federal Third – may not be cited as precedent. For some reason
the courts of appeals, at least the D.C. Circuit, was very attached to its no-
citation rule. A decision not printed in the official Reporter doesn’t count176
as precedent and lawyers can’t cite to the court a so-called unpublished
disposition.
Now, I never saw any merit in that no-citation rule. It seems to me
that a lawyer should be able to cite anything a court decides. The panel
will know, if this is a decision that a prior panel has chosen not to publish
in the Federal Reporter, that the prior panel thought the decision created
no new law, no elaboration on prior law, that it’s just an explanation to the
parties of clear and certain law. So it’s similar to the situation you may
have in a trial before a judge. You won’t have the rigid evidence rules
application that you will have if you’re trying a case to a jury. The judge
may say, “Well, I’ll take it for whatever it’s worth.” And that’s how I
would regard a so-called unpublished disposition. You can take it for
what it’s worth. What it’s worth is affected by the prior panel’s judgment
that the panel was not doing anything at all new or different.
Dr. Marcus: Do you make that decision before the case is argued or after the opinion is
written? At what point?
Justice Ginsburg: The decision for the cases that are screened out for decision without oral
argument will be made initially by the staff counsel operation, always
subject to review by the judge. Then, when a case is put down for oral
argument, it’s going to be on the regular calendar. The panel will make
the decision about the character of the disposition at the conference
immediately after the oral argument. So for the cases that are screened out
from oral argument in the beginning, those cases will not be decided by a177
so-called published opinion. But the cases that are argued before the
panel, some of them will be decided by a published opinion, some will be
decided by simple judgment or judgment and accompanying
memorandum. That decision is made by the panel of three judges
immediately after the oral argument.
Dr. Marcus: When you receive your panel assignment, what do you do first? You get a
list of cases. In your chambers, how do you treat this list of cases? How
do you prepare?
Justice Ginsburg: We’re talking about the D.C. Circuit?
Dr. Marcus: The D.C. Circuit, yes.
Justice Ginsburg: They would bring in huge carts all the briefs for the sitting, and the
records, and they weren’t neat and tidy, the way they are here at the
Supreme Court. I would do the easy cases. When we prepare for a sitting,
the law clerks start with the heavies, and I take the lights, and we meet in
between. For the heavy cases, the law clerks prepared a bench
memorandum, not to tell me how I should decide the case, but to give me
a road map that will help me speed-read the papers I must read. So in all
of the heavy administrative law cases, I had a law clerk’s bench
memorandum as my guide. But for the easier cases, I would read them
and then I might have a question or two that I wanted the law clerk to run
down. And we would meet somewhere in the middle of the sitting.
The law clerks, I let them divide up the heavy cases among
themselves so if one got hit harder than another, they had only themselves178
to blame and not me. So I didn’t assign the cases to the law clerks; they
did it for themselves. In the cases that had a lot of amici briefs, I did there
just what I do here, I asked the law clerks to make piles: “read,” “skim,”
and “skip.”
The first thing I always read before any law clerk’s bench memo
was the decision I was reviewing, whether the district court’s decision or
agency decision, I always started with that before I read any brief, before I
read any law clerk memorandum.
Dr. Marcus: What do you hope for in a brief?
Justice Ginsburg: Something that’s honest and clear, that doesn’t slant things so that you
know you can’t trust anything it says, a brief that cites a case so that when
you go to check will say, “Yes, this supports that statement.” That’s what I
hope for. I hope for a brief that could be used as a basis for an opinion. It
is very rare that you get such a brief, because most lawyers adopt a
fiercely adversarial mode, they don’t think of writing something less
partisan. The most important thing is that the brief be honest, especially in
a court like the D.C. Circuit, where you get repeat players. That court is
really a United States court. A large number of the cases involve the
United States or an officer of the United States on one side or the other, so
we tended to get the same lawyers from the agencies, and from the U.S.
Attorney’s office. And there tend to be specialized bars to match those
agency cases – the communications bar, for example.179
So we’ve got the same lawyers coming back to the court, and a
lawyer will have a reputation. When a lawyer submits a brief with
citations that don’t fit, the judge will remember that. The judge will
remember the frustration of recognizing, “This doesn’t hold what the
lawyer told me it held.” The judge may then resolve, “I’m not going to
trust anything else this lawyer presents to me.” So the most important
thing in a brief is that it be honest.
Dr. Marcus: Did you notice any difference between government briefs and private
attorneys’ briefs?
Justice Ginsburg: Yes. Most of the government briefs were at least good. We had a number
of very good U.S. Attorneys in the years I was on the D.C. Circuit. I
remember how impressed I was with Chuck Ruff when he was the U.S.
Attorney. He set a very high standard, a standard to be followed by the
people who worked on his staff. I remember how impressed I was with
the trustworthiness of the briefs that came out of the U.S. Attorney’s office
in that period.
Dr. Marcus: What about the Justice Department?
Justice Ginsburg: For the most part, they were good. There was sometimes an overuse of
procedural hurdles. Some government briefs I thought pulled out every
preliminary threshold objection one could make, reasonable or
unreasonable. In the old days when there was still an amount-in-
controversy requirement for federal question cases, they would trot that
one out routinely. A good U.S. Attorney will raise the important180
questions. If there’s a real standing question, the good government
attorney will raise it, but will drop those issues that just clutter up the brief
and will annoy a busy judge.
Dr. Marcus: What about oral argument? What do you expect from the attorneys who
appear before you, government or private?
Justice Ginsburg: Again, trustworthiness and then willingness to engage in a conversation
with the court, appreciation that the oral argument session is a
conversation and not an occasion for a lecture. It’s a very concentrated
episode. We rely principally on the writings. But oral argument is the
moment when the lawyer can give a case his or her best shot, face the
decision-maker in the eye and try to dispose the court in that side’s favor.
There’s no point in trying to douse the court with all the law on the issue.
You don’t have time to do that. You have to keep it simple, keep it clear
and simple, and present it in such a way that the court will want to decide
in your favor, and will go back to chambers to make sure that it can. But
the best one can do at oral argument is to lead the court, say, “If the law
checks out, I think that side has the better case.”
Dr. Marcus: Do you remember any particular case while you were on the D.C. Circuit,
where a lawyer changed your opinion, how you thought you might decide
the case?
Justice Ginsburg: I remember a couple of cases, but it was rare. It was, most of the time,
nuances. You would adjust your views based on what you heard in the181
argument, but it was rare the party you anticipated would be a loser turned
into a winner.
One such case in the D.C. Circuit involved a search of a house.
The picture presented at oral argument was so clear and persuasive. The
brief wasn’t very good, the brief of the complainant. The case was one in
which the police had a warrant but went to the wrong house. The street
had row houses; they all looked alike. The house number was hanging
upside down. The police broke into the place at night. They woke people
up and were abusive. The question was whether they had probable cause
to believe that they were in the right house. It was only the clarifications
that came out of oral argument that made it clear that they lacked the
requisite cause, that it was extremely sloppy police work.
Dr. Marcus: When oral argument is over, you say you immediately go into conference
on the cases of that day.
Justice Ginsburg: Yes.
Dr. Marcus: Do you ever confer with your fellow judges before the oral argument?
Justice Ginsburg: It was not done. I tried on a few occasions. One of the reasons it wasn’t
done, many people are not prepared, fully prepared, until the evening
before or maybe even the morning set for the argument. They’re still
reading briefs, they’re still checking cases. So it was not considered the
thing to do, to try to engage the panel before. It was also thought that this
is a collegial process with three judges, so there should not be any
conversation between two judges. It’s a panel decision and all of the182
discussion should go on among the three, without any anticipatory
discussion.
The D.C. Circuit also never had the practice that the Second
Circuit did, of circulating a memo expressing your tentative views before
the panel met. Gerry Gunther, in his book on Learned Hand, makes very
good use of those memoranda, and Hand’s memoranda sparkle in
comparison to some of the preliminary views of his colleagues. But the
D.C. Circuit didn’t put anything in writing before the panel met, it was
another mind-set. The idea was, if you put something down in writing,
you might be wedded to it in a way you would not be if you stated it in
conversation that wasn’t recorded. The assumption was that you would be
more receptive to your colleagues’ views if there was no written advance
indication of your position.
Dr. Marcus: Once you got into the conference, I assume it was the senior judge –
Justice Ginsburg: Formally, yes, but because we were only three, it worked out by
consensus. We sat together for a week. At the end of the week, the
presider would check whether there was an even division, a more or less
even division of writing responsibility. If one person ended up too heavy,
that person might pass a case on to someone else. So although in form the
presiding judge did the assigning, more often it was kind of a consensus,
who would write what.
Dr. Marcus: Did you discuss the case before you took a vote, or didn’t you really take a
vote? Did you sort of go through –183
Justice Ginsburg: Yes, we discussed the case, and as a result of the discussion there was no
need for a formal –
Dr. Marcus: For a vote.
Justice Ginsburg: And the discussion was longer with some panelists than it was with others.
If I were sitting with Ed Tamm and Roger Robb, we would be out in
fifteen minutes. If I was sitting with Carl McGowan, say, and – who else?
Harry Edwards. We could go on. Well, I remember once with Carl and
Harry, we sat a whole afternoon just talking about one case. So there was
a tremendous variation from one panel to the other, how much discussion
went on. In some panels, hardly any. In others, more extensive.
Dr. Marcus: When you came to a view of sort of how each person would vote, how at
that moment did you decide who would do the opinion?
Justice Ginsburg: A tentative assignment would be made or someone might say, “I’ll write
that one,” and the others would say, “Okay, you write it.” There was no
formality to it. But what I always did on the D.C. Circuit, as I do here, is I
came back after a conference and put down on paper what my colleagues
said they thought about the case, because sometimes what appears on your
desk months later doesn’t conform to what was said at the conference. So
it’s always good to have that record made when the discussion is fresh in
your mind.
Dr. Marcus: Did you try to persuade your colleagues in the conference?
Justice Ginsburg: Oh, yes. Yes, especially in cases where I thought it was important to the
sound development of the law. There are cases that the D.C. Circuit got,184
even cases that this Court takes, where what you need is an answer, a clear
answer, and it really doesn’t matter too much whether the plaintiff wins or
the defendant wins, but you have to have a clear rule and then everybody
adjusts to it and life goes on. But there are other cases where there is, in
my judgment, a right answer, and in those cases I certainly try to influence
my colleagues.
Dr. Marcus: Did you have the feeling that a unanimous opinion of a three-judge court
was a much stronger opinion than someone dissenting? Was that an active
search to get people to agree?
Justice Ginsburg: I don’t think there was an attempt to get someone who had a firm position
to suppress it. I’ve seen more of that here. Someone may circulate either a
dissenting opinion or a separately concurring opinion that never sees the
light of day because the opinion author is willing to accommodate that
different position. A number of written-out opinions here are eventually
dropped. That didn’t really go on in the D.C. Circuit. If you wrote out an
opinion, you were going to use it. You were not going to suppress it. So
maybe because there were more cases, maybe it’s a question of an esprit
that the court builds does or doesn’t build up, but the dissenters were not
inclined to let go, as I remember.
Dr. Marcus: Did a large percentage of cases have dissents?
Justice Ginsburg: No, I don’t think so. Remember that so much of an appellate court’s work,
when review is a matter of right, really is not controversial. Consider, for
example, cases where the appellant complains that there was insufficient185
evidence to support the trial court’s judgment. On such questions we defer
heavily to the district court. I think that the affirmance rate was much
higher than reversal rate. That’s the difference between a court that hears
appeals as a matter of right – where there will be many cases that are
simply affirmed – and this Court that generally takes cases only when
there’s a division of opinion among other courts about what the law is. So
there was a great deal of unanimity because there were many cases where
there was no genuine dispute about how it should come out.
Dr. Marcus: Were there any particular kinds of cases that you disliked being assigned?
Justice Ginsburg: I was so pleased when the Federal Circuit was created and took away all
the patent appeals. Those were tough cases if you had no background in
the technology. I didn’t particularly love some of the three-cornered
agency cases, the attacks on rulemakings where you had the agency in the
middle, the environmentalists on one side, the industry on the other side.
Some of those had fascinating issues in them, questions of standing, for
example, but the lawyers could have used more in the way of pre-appeal
conference. I remember one of those heavy cases. It concerned the
regulation of surface mining and had 122 issues. The lawyers involved
could have gotten together and said, “We shouldn’t burden the court with
this one or that one.”
That’s, again, a difference, a large difference. In this Court we
grant review on one or two issues. In the D.C. Circuit, the lawyers were186
free to bring up whatever they wished to bring up. Sometimes a good
issue could get lost under the weight of issues that had no merit.
But I thought that the D.C. Circuit’s case load was fascinating. As
I said, it is a court for the government’s business, and there was such a
variety in the agencies that we were reviewing. You asked about counsel,
but the decision-making before it came to the D.C. Circuit, the quality of
the decision-making within the agencies, I found varied enormously.
Some of them were terrific and others were very bad. I won’t tell you
which ones, but –
Dr. Marcus: You should. This is history. Come on!
Justice Ginsburg: When we got a case from a certain agency, I knew that I would have no
help at all from the decision made in that agency because they had very
poor staff work. It was unlike the district judges. There was some variety
among them, too, but not as much as in agency decision-making.
Dr. Marcus: Is the procedure different when you hear a case en banc?
Justice Ginsburg: It’s different. First, to have an en banc, you had to have the majority of the
active judges vote to hear the case that way, and then the chief judge will
preside. You go around the table in seniority order. There’s not much of
an opportunity for cross-conversation. And they tended to be cases where
the court was divided on more or less political lines, so they were not my
favorites.
Dr. Marcus: Is opinion-writing much more difficult when you have an en banc case?187
Justice Ginsburg: If you have a majority – I’m trying to think of the first case I wrote en
banc for the D.C. Circuit. It was a search and seizure case. It wasn’t as
hard as some of the opinions I wrote for a three-judge panel. I had a good
solid majority. It was my first year on the D.C. Circuit. The Supreme
Court reversed the decision, but Justice Stewart did employ some of my
reasoning.
Dr. Marcus: I was going to ask if it’s hard to write an en banc opinion in the D.C.
Circuit or a majority opinion here.
Justice Ginsburg: If it’s a close case, if the Court divides five to four, then it’s a real
challenge to hold all five, especially if one is shaky. On the other hand, if
you’ve got eight or seven, it’s less challenging.
Dr. Marcus: Do you remember especially any en banc cases, not necessarily that you
wrote the opinion for, but some that were particularly contentious in the
time that you spent on the court?
Justice Ginsburg: The Evans and Novak case was one. It concerned an academic who
claimed he had been defamed because Evans and Novak wrote, “What is
Bertell Ollman? In his profession he’s considered an activist, pure and
simple,” or something to that effect. These were the words: “He has no
status in his profession. He’s a pure and simple activist.” Some of us who
had been teachers said, “Well, what else is new? People not uncommonly
say that kind of thing.” Others reacted, “That’s the worst insult you can
hurl at an academic, he has no status in his profession.” I found that
amusing. Some of my colleagues viewed it as a highly contentious case.188
The Tavoulareas libel case was another one. That was interesting
because, among other features, Edward Bennett Williams argued the case
and he argued it, from the point of view of the bench, very poorly. He
gave us no help at all. But on reflection, I came to see that he was not
speaking to us. He could count, and he knew he had a majority to reverse
the judgment of the district court, so he was playing to the people behind
him, Kay Graham and all the people from the Washington Post. That’s
what he was doing and he did it very successfully, though he gave the
court very little help in writing the opinion. I wrote a small separate
opinion on a matter of procedure in that case.
The first case in which I wrote for an en banc court involved a
defendant known as Bandit. The police had stopped his car and found, in
the trunk, a leather purse. They thought it was leather; it was in fact
naugahyde. Next to the purse was a paper bag. The pouch had money in
it and the paper bag had crack or heroin. The panel had decided that the
police needed a warrant to open the leather pouch, or the supposed leather
pouch, but needed no warrant to open the paper bag. They were free to
take off the tape and uncover whatever contraband it contained.
I said what the court appeared to be doing in these cases was to
draw a luggage line. That is, if it was a nice green suitcase, green leather
suitcase, a warrant would be required to open it. But what about a burlap
bag? I brought to the conference the variety of containers I had at home,
including jewelry pouches, bookbags, laundry bags, plastic bags thick and189
thin. I spread them out on the conference table and asked, “Are we going
to expect police officers to make these fine judgments” endeavoring to
follow what I called “the worthier container rule”? “The one thing we
cannot do,” I urged, “is to tell the police you can open the paper bag
without a warrant, but not the pouch. It’s got to be, ‘Police, if you find it in
the trunk, you either can open it or you can’t open it without a warrant.'”
In the D.C. Circuit, we decided that if you had to get a warrant for
one item, you had to get it for all. The Supreme Court agreed that courts
couldn’t draw a luggage line, but the Justices decided that the trunk is fair
game, whatever is in it. Both courts agreed to this extent, that the police
officer on the spot should not be called on to make the judgment, is this a
worthy or unworthy container. They’ve got to have rules they can live by.
And our rule was, get a warrant. Once the vehicle – you’ve apprehended
the defendant, he’s not going to get away, the vehicle’s not going to get
away, you can keep the vehicle under your control, go to a magistrate and
get a warrant before you open what’s in it. That was our rule. The
Supreme Court said, “If you have probable cause to stop the car, you can
examine its contents.” So we disagreed on the bottom line, but we did
agree on the intermediate step: are we going to have some kind of a
worthy container rule or should the police have a clear rule and be told
either you can do this or you can’t do it.
Dr. Marcus: Was your method unique? [Laughter]190
Justice Ginsburg: I really astonished everybody. Colleagues said, “You’re bringing in
evidence that’s not in the record.” I said, “This is an exercise in common
sense. Think of the police officer on the spot. How will he judge – this is
a genuine leather suitcase. This one is plastic.” And I had thin garbage
bags and heavy garbage bags, and put them all out on the long conference
table.
Dr. Marcus: This is really interesting, because one of my questions was whether you
think male and female judges approach the decision-making task
differently.
Justice Ginsburg: Well, in that decision in the D.C. Circuit, when I listed the string of items
that we’re not going to ask the police to differentiate, there were items that
occurred to me because I’m a woman, items you might not have found in
the opinion if it had been written by a man whose life experiences were
different.
Dr. Marcus: Can you think of any other examples?
Justice Ginsburg: Well, that one is a real standout. I’m sure there were others.
Dr. Marcus: You can think of it another time.
Justice Ginsburg: None that hops into my mind at the moment.
Dr. Marcus: Let’s go on to opinion-writing. How did you organize that in your
chambers?
Justice Ginsburg: In some cases, my own pre-conference notes were a bare bones kind of
opinion, and all I had to do was flesh that out. In other cases, I didn’t have
anything workable, ready at the time the assignment was made. So I191
reread the opinion below and the briefs, then made an outline. Sometimes
I would then ask the law clerk to work from the outline. Other times, I
would say, “I will do this section, you do that section, and then we’ll
exchange.” We did it in different ways, but almost always, unless it was
the simplest case, I gave a law clerk an outline to work with so that that
clerk wouldn’t waste his or her time or my time with something I could not
use.
Dr. Marcus: If law clerks do drafts – and I gather that they do, for the most part in most
chambers now, whether the D.C. Circuit or here or whatever – do you
think that this has had an effect on the quality of opinions?
Justice Ginsburg: Sometimes it’s gone up.
Dr. Marcus: Think so? [Laughter]
Justice Ginsburg: I shouldn’t say that. But I don’t think there was a judge on the D.C.
Circuit, and certainly there’s no judge here, that doesn’t make the opinion
his or her own at the end. Some do more personal writing, do more of the
first drafts themselves than the others, but every judge goes over the
opinion with care. Some judges have a style that is unmistakable, a style
that no law clerk, no matter how good, can copy without making it seem
like a parody.
So the law clerks who work for this court, law clerks in the courts
of appeals and district courts, they’re very bright. My experience has been
that some of them cannot write a draft that’s usable, at least not usable for
me. Others pick up my style in such a way that it’s almost frightening.192
[Laughter] But that talent you cannot predict. You can’t predict it on the
basis of their writing samples, what their professors say. Most often
they’re tremendously valuable to me for the research they do, but they
really can’t construct or compose an opinion the way I would write it.
When I have clerks who can do that, it makes my life that much easier. In
D.C. Circuit, we each had three law clerks. Some years I went without
any clerk who could manage a usable draft. A couple of years I had two
clerks whose work I could easily edit and adopt. I never had three out of
three who could do that.
Dr. Marcus: How many cases, on average, did you consider on the D.C. Circuit each
year, and how many opinions were you assigned, on average?
Justice Ginsburg: How many? I can’t remember back, but many, many more than on this
Court. Somewhere around twenty-five full opinions, not so-called
unpublished opinions. Something like that a year on the D.C. Circuit.
Here, last year I wrote nine majority opinions. So at least twice as many,
probably more than twice as many. But the opinions here take more time.
The questions are more important. And also –
Dr. Marcus: You were talking about the opinions.
Justice Ginsburg: Part of giving the federal courts too many cases, one effect is that judges
simply can’t put the effort into opinions that they once did. Also, when
you look at the large number and bulk of published opinions, a judge may
get the sense, “Look. Nobody’s going to read this, so I don’t have to be too
fancy about it. I don’t have to be elaborate in my reasoning.”193
Steve Breyer, when he was on the First Circuit, wrote an article, I
think it was in the Suffolk Law Review, in which he said, “Lawyers, law
teachers, law students, they read Supreme Court opinions, but they don’t
read our opinions.” It wasn’t that way when I graduated from law school
in 1959. In those days, I read the Federal Supplement and Federal Second
advance sheets, sometimes only the head notes, but I went through them
and called my judge’s attention to any decision, not just a Second Circuit
decision – we got the slip sheets for those – but decisions of courts of
appeals across the country, occasionally a district court, that I thought
were notable, and might be useful to him. But no law clerk can do that
now; there’s just too many, too many decisions.
Judges on the lower courts are getting the sense, “Nobody’s going
to read what I write, so why bother making it as clear and as crisp as I
can? It’s good enough to let the law clerk do the draft, I’ll fix it up to see
there are no big slips, and then let it out.”
Dr. Marcus: I know you told me you were reading the John Marshall biography.
Justice Ginsburg: Yes.
Dr. Marcus: Didn’t it astonish you that they sat for a month or six weeks or two months
at the most and they decided from twenty to sixty cases in that period?
Justice Ginsburg: Yes.
Dr. Marcus: With quite elaborate opinions.194
Justice Ginsburg: What’s even more astonishing is that Marshall wrote, in the beginning,
almost all of them, except when he was recused. The mind of that man, to
be able to operate the way he did.
Dr. Marcus: The one thing that he did that I don’t think was mentioned in the
biography, but something that you said, reminded me, is that he did take
his opinions sometimes almost wholesale from the argument, the oral
argument.
Justice Ginsburg: Yes.
Dr. Marcus: Went on for six days and if it was his point of view, he took the language,
everything, from what the attorney said out loud, because they didn’t
always hand in briefs in those days.
Justice Ginsburg: Well, there’s nothing wrong about that. I have seen too many Supreme
Court decisions that rewrite a fine court of appeals decision. I’ve seen too
many court of appeals decisions that ignore an excellent brief in favor of a
law clerk’s dense prose. Maybe that’s a downside of having too many law
clerks, that a judge, left to his or her own devices, without someone’s
assistance, will have to rely on the briefs or spend the time writing the
prevailing argument himself or herself. There seems to be a view,
unfortunate in my judgment, that everything has to be rewritten. I don’t
think it should be.
I recall once saying to my colleagues on a D.C. Circuit panel, “The
District Judge, Aubrey Robinson has written a gem of an opinion. Let’s
adopt it as our opinion.” We disagreed about some preliminary questions195
and produced two opinions on those points, but on the merits we simply
reproduced Judge Robinson’s opinion. By placing it in Federal Second,
we gave it more precedential value than it had when reported only in
Federal Supplement. I think courts of appeal don’t adequately appreciate
the value of a good district court decision, and this Court could, I think,
profitably take more from a good court of appeals decision or even a good
brief than it does.
Dr. Marcus: When you were writing a dissent in the D.C. Circuit, was the process
different for you?
Justice Ginsburg: Not for me, and it isn’t here either, because I don’t wait to get the majority
opinion. It’s training that I had as a lawyer when I wrote the brief for the
respondent or the appellee. I wrote it first and affirmatively. If you wait
to get the other side’s presentation, whether it’s the majority opinion or the
appellant’s brief, there is a strong urge to answer back, to be reactive, to
say, “Not so. Not so,” instead of leading from strength, stating your case
as you would if you were writing the majority opinion. I try to have a
rough draft of a dissent in hand before I look at the majority opinion.
Then I can make adjustments.
A habit I carried over from the D.C. Circuit is to answer the
majority in footnotes. I didn’t disturb my pre-written dissent too much. I
didn’t think it my job to show how badly reasoned the majority opinion
was, or to nit-pick my colleagues’ opinions. Yes, I could do a little of that,196
as I said, generally in footnotes, but the main thing was to set out my
reasoning as though I were making the decision.
Dr. Marcus: Do you think the purpose of dissent is the same in both courts or perhaps
different?
Justice Ginsburg: It’s the same to this extent. If you were writing a dissent in the D.C.
Circuit, you were trying to influence – in many cases you were trying to
influence other circuits that hadn’t yet decided the question. That was
another reason. You wanted to have the kind of opinion some other court
could pick up and say, “This, we think, should be the majority opinion.”
On rare occasions here you can pick up a fifth vote with a dissent. If the
Court is closely divided, you may end up with a majority instead of a
dissent.
If it’s a question of statutory interpretation, the dissent might be
pitched to Congress saying, in effect, “Look. The court thinks you meant
this. I think you meant, or at least you should have meant, that. If you
agree with me, amend the law accordingly.”
If it’s a constitutional question, well, then you really are appealing
to a later court. You hope that eventually, when times are different, your
dissenting position will become the court’s position.
Because we have statutory cases to a much greater extent,
dissenters may often see Congress as their primary audience.
Dr. Marcus: What kinds of sources do you use for your opinion? Is any kind of
information off limits?197
Justice Ginsburg: Oh, yes. I can’t call, say, Gerry Gunther, and convey “I really want you to
spend time talking out this issue with me.” The most I can do is say to one
of my academic colleagues, “What is the best article on this topic?” I try
to do that in a way that does not reveal what I’m writing. But I have the
entire law library as my disposal. I can read what a professor wrote in a
law review article. I can’t call that person on the phone, but I can read
anything that’s published.
If I get something that’s unpublished, and we do sometimes get
galleys or page proof from law professors, I can’t use that unless it has
been given to both sides in advance of briefing. Here, there’s no writing
after the oral argument. On the D.C. Circuit, if you think something is
really important, you can flag it and request supplemental briefs. Here
that seldom happens. So the limitations are, I can’t have conversations the
way I did when I was an academic, when I tried out ideas with people in
the field whose opinions I respect. And I can’t make use of unpublished
material, material that was not accessible to the lawyers who argued the
case.
Dr. Marcus: Do you think that you and your fellow judges are influenced by law
review articles?
Justice Ginsburg: It varies. It may depend on who wrote the article. Many former law
clerks are now in academia and they’re writing articles. Sometimes their
commentary shows up in their justice’s opinion. But the variety is
enormous, running from excellent to dreadful.198
Dr. Marcus: Do you discuss with your colleagues, or did you discuss with your
colleagues on the court of appeals, law review articles, theories put forth
by –
Justice Ginsburg: Rarely. It depended on the panel. I mean, I could with Harry (Edwards),
with Carl (McGowan). I certainly didn’t with George MacKinnon and
Roger Robb, or Ed Tamm. There was less discussion than I thought there
would be on the D.C. Circuit. I had been told that here the justices operate
in separate chambers and rarely talk to each other, everything’s on paper.
It’s just not so. We converse about cases not only at conference but often
at the lunch table. We eat together every sitting and conference day.
That’s a serious lack on the D.C. Circuit. There was no place for, and no
tradition of, having lunch together. I think I mentioned that last time.
Dr. Marcus: It’s also in the Marshall biography, the fact of their living together and
having to eat together made all the difference in the way they worked
together.
Justice Ginsburg: Yes.
Dr. Marcus: I guess it’s still true, that that might indeed make a difference. You might
not want to live with the fellows, but it could make a difference. How
large a part does precedent play in your decision-making?
Justice Ginsburg: A very large part in statutory cases.
[Telephone rings. Tape recorder turned off.]
Dr. Marcus: We were talking about how large a part does precedent play in your
decision-making process.199
Justice Ginsburg: In statutory cases, it plays a large part. As Brandeis said, some things are
better settled than settled right, and there’s not necessarily a right or a
wrong answer, but you need a rule. In constitutional cases, less. But more
for courts of appeals. In that respect, that job was easier than this one,
because you were bound by Supreme Court precedent, like it or not, and it
wasn’t your job to twist or turn away from it. You could say, “I think the
Court ought to reexamine this,” but you could not decline to follow it.
Otherwise, you were not doing the job you were appointed to do.
Dr. Marcus: Did you follow – I guess you don’t have to follow it, but did you try to
follow other circuits’ decisions on these points?
Justice Ginsburg: Yes, they had persuasive value. We had a conference early in my service
on the D.C. Circuit to discuss avoiding circuit splits. One of the things we
decided was whenever there was a split, whenever a panel of the D.C.
Circuit was going to put itself in opposition to another circuit, we should
flag the split. Every opinion, before it was released, was circulated to the
entire court. So circuit splits rarely went unnoticed.
As the number of opinions mounted, judges tended not to read
them through, but I at least skimmed every D.C. Circuit opinion pre-
release. Occasionally, I put a hold on circulating opinions in tension with
opinions still in the works, or I’d notice that another circuit had come out
another way.
We had agreed, as I just said, to flag a circuit split we were
creating. That agreement sometimes fell apart in practice, not because200
judges decided they didn’t like it in the ideal, but what is a split? This case
can be distinguished from that, so there’s not a square split. Should the
question be flagged nonetheless?
Some of the circuits went further and said that the panel, before
creating a circuit split, not only had to circulate to the full court. In
addition, a majority of all active members had to agree affirmatively that
the circuit’s position was so right it should put itself in opposition to
another circuit. So there was a respect for the decisions of other courts of
appeals, but obviously not the kind of respect, there had to be for decisions
of the Supreme Court.
Dr. Marcus: Knowing that – this is as a court of appeals judge. Knowing that the
Supreme Court could reverse you, did that have an effect, first, on the way
you decided a case, and also, second, on how you wrote the opinion?
Justice Ginsburg: If you knew that the case was likely to go to the Supreme Court, you did
try to write it in such a way that it would hold up, but there were a couple
of times I knew there was no chance my opinion would survive when it
was reviewed here. I still wrote it the way I did, and I don’t regret any
decision of mine on the D.C. Circuit – there were several – that were
reversed by this Court.
Dr. Marcus: I know that you said you learned not to take it personally.
Justice Ginsburg: Yes.
Dr. Marcus: When you finish writing your opinion, do you circulate it only to your
panel in the court of appeals?201
Justice Ginsburg: Yes.
Dr. Marcus: And the other judges never have an opportunity to see it?
Justice Ginsburg: They do. They do. But that’s after. After the panel is done, we had a rule
that the opinion would circulate in the full court for a week before it was
released, and you could blow the whistle and say, “I don’t want this
released.” You could say, “I don’t want this released because I want the
panel to consider this or that.” Or, “I think this is the rare case where we
should sit initially en banc. Don’t let this panel opinion out. Set the case
for re-argument before the full court.” It wasn’t often that a case would be
stopped by a judge outside the panel, but it did happen.
That’s why I worry about circuits that get too large, because there’s
just no way that, say, in the Ninth Circuit, all of the judges can read all of
the opinions that come out from all of the panels. Inevitably, there will be
cases where an opinion about to come out is not consistent with a draft
that’s on another judge’s table. In the D.C. Circuit, the one-week
circulation pre-release worked. A judge could say, “I have a case that
decides the identical issue,” or a very closely related issue, “and let’s see
what we can do to avoid collision.”
So, the initial approval is from the panel, and when that’s done, it’s
ready to go, except for this waiting period when another judge can say, “I
want it held up,” for this, that, or the other reason.
Dr. Marcus: I think this is a good time to close this interview, and we can continue
another time.202
END OF SESSION FIVE