Ruth Bader Ginsburg Interview 6

203
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 August 19, 1998. This is the sixth interview.
Justice Ginsburg: It’s much more complicated than last time.
Dr. Marcus: I know. It’s supposed to be a terrific digital set. And you know what?
The Supreme Court Historical Society bought it for the use of the Federal
Judicial Center when it was doing interviews of retired Supreme Court
Justices, and there were only four interviews, I think, done, and that’s the
end of it. They’re not doing it anymore. And I don’t even think all four
interviews are usable. So they took back their quarters. So we’re
beneficiaries of this state-of-the-art recording, and it is better, because I’ve
listened to the tapes that we’ve done before, and you get most of it, but
there are certain words that – at least, I listened to it in the car. I’m sure a
person with earphones could hear it, but it’s very hard to catch, and I’ve
just listened to the test on this. It seemed very much better; you don’t have
to shout. So it’s a good thing. And the tape goes; you don’t have to turn it
over, which is another advantage. It goes forth, you’ll be pleased to hear,
two hours. We don’t have to go for two hours if you don’t want to, but it
does go for two hours.
When we ended last time, we were talking about your work on the
D.C. Circuit in general, and we stopped not quite at the end. So I have a
few general questions, and then we’re going to turn to the cases that you204
gave me. I was curious to know if you had a set routine as a judge and
whether on the court of appeals it differed in any way from this Court.
Justice Ginsburg: The basic routine of preparing for the oral arguments, listening to the
arguments, going back and writing opinions, gearing up for the next set of
sittings, that’s very much the same. What’s different is that this Court is
constant in its composition. At the D.C. Circuit you sat with different
people all the time.
What’s also different, we pick the issues we want briefed and
argued, where in the D.C. Circuit one of the major problems was to wade
through all the junk to get at what was really at issue, genuinely at issue in
the case.
Dr. Marcus: So would you say it was more work, total, do you think?
Justice Ginsburg: No.
Dr. Marcus: No?
Justice Ginsburg: This job is the most consuming one I’ve ever had, because everything
matters. In a high percentage of the cases in the D.C. Circuit, affirmance
was clear and there was no doubt that the panel would agree on it, and
many of those cases came to be decided eventually without even oral
argument. But even in the argued cases, in many of them, there was a
right answer.
Here, we generally don’t take cases unless there’s division of
authority, so that the issues here tend to be constantly challenging, and
there are few cases about which you can say, “Well, this one we will all205
agree on, it’s a clear affirmance.” The percentage of affirmances of the
district court was very high. I don’t remember the precise percent, but
probably somewhere between 70 and 80 percent of the cases coming to the
D.C. Circuit from the district court were affirmed.
Dr. Marcus: That is certainly interesting, in view of the cases that you’ve chosen.
Justice Ginsburg: Well, of course I chose the cases where there was controversy.
Dr. Marcus: Yes, that’s true. I just want to ask you a couple of last questions on your
law clerks. Do you have any different criteria here from the ones you used
to choose them on the D.C. Circuit?
Justice Ginsburg: No. I continue to choose a candidate who is highly recommended to me
by someone I trust, whose writing sample is one I think would work for
me, a person with whom I have a certain chemistry. That means I would
like having that person around my chambers for a year.
What’s different is just this: At the Supreme Court, I don’t take
people directly out of law school. In selecting my current clerks I have the
benefit of the judgment of a good judge, a district judge or court of
appeals judge, and that person’s judgment is usually reliable. So I have an
additional check here that I didn’t have on the D.C. Circuit, when I tended
to take people straight out of law school.
Dr. Marcus: And I don’t know if you’ll be upset by this question but it always comes
up.: Does political persuasion play any role in choosing law clerks?
Justice Ginsburg: Speaking for myself, no, it doesn’t. Maybe it does for some law clerks.
Some law clerks in my D.C. Circuit days would apply only to the Carter206
four or only to the Reagan-Bush people. I think it’s the same here. Most
applicants will apply to all of us, but some will not apply to, say, the
Clinton appointees, and will apply to the others. Some put Federalist
Society on their resume as sort of a notice or warning. I tend to ignore
that if someone applies to me and I’m told by a person whose judgment I
trust that this clerk will do well for me. One of my favorite law clerks of
all time, a Yale Law School graduate, had Federalist Society on his
resume. As it turned out, he was at least as “liberal” as I was, but he
probably thought the identification might work to his benefit in other
places. And he did come to me from Alex Kozinski, who might have been
impressed by that membership.
Dr. Marcus: That’s interesting. This is just a curious question because I always liked
this when I read about Justice Brandeis and the advice he gave to his law
clerks after they finished a year with him. Do you know about this?
Justice Ginsburg: No.
Dr. Marcus: He told them to leave Washington, they should not work in Washington.
So I was curious if you give your law clerks any advice.
Justice Ginsburg: No, I could hardly repeat Brandeis’ advice because I like this town so
much. My daughter had said that if I had come to D.C. in my thirties
instead of my forties, I might not have enjoyed it as much. The town is
less bustling, less hectic, there’s less going on than in New York. On the
other hand, things are more accessible here. The pace of life is a little
slower because it’s a Southern city. The only frustration for me is driving.207
Having learned to drive in New York traffic, the notion that you stop when
the light is yellow, instead of speeding ahead, is new. [Laughter]
Dr. Marcus: Well, you haven’t been driving, I know, probably. This changed
dramatically.
Justice Ginsburg: I still drive myself back and forth to the Court every day.
Dr. Marcus: Do you?
Justice Ginsburg: Yes. The police take me if I’m going to some function to give a speech or
– and this is the biggest aid – to an airport.
Dr. Marcus: No, I was thinking Martin might drive you instead of you driving yourself
home.
Justice Ginsburg: Only when he’s in the car.
Dr. Marcus: But I will advise you, if you like that kind of driving, to go to Naples and
Palermo, where I was this summer, where lights mean nothing.
Justice Ginsburg: Yes, I know. Paris, too.
Dr. Marcus: Are you at all disturbed by the increasingly conservative outlook of the
D.C. Circuit? I guess since you began it’s changed quite a bit.
Justice Ginsburg: It’s hard to say “disturbed.” We do get to review the D.C. Circuit’s
decisions. I’m not disturbed by outcomes as much as the tone of some of
the opinions, the unnecessary nastiness in some of the opinions. The
almost haughty tone is off-putting. But that style of writing is not a
monopoly of any particular end of the political spectrum. On this court I
would think the jazziest writers are Stevens and Scalia, and one would not
put them on the same side of the political fence. But the tone of D.C.208
Circuit opinions can be disturbing. That certainly isn’t true of all of that
court’s opinions, but in some cases, opinions have a tone that seems to me
injudicious.
Dr. Marcus: Did you ever sit on other courts of appeal?
Justice Ginsburg: No, I couldn’t because by the time I was appointed, Chief Justice Burger
had installed a borrower-lender rule. If your circuit was a borrower, that
is, if you borrowed judges from other circuits, no judge of your court
could leave to sit anyplace else except a senior judge.
Dr. Marcus: I didn’t know that.
Justice Ginsburg: Burger was determined to contain the extent to which judges were using
federal money to fly from one place to another. His thought was that if a
court needed to borrow judges from elsewhere, then that court couldn’t
afford to give up any of its judges to judge cases in another circuit. I
considered it an unfortunate policy, because I think we learn from what
other circuits are doing, from their approaches to common problems. But
in any event, I didn’t have that opportunity, because judges in regular
active service could not sit in another circuit during my years on the D.C.
Circuit.
Dr. Marcus: So I take it that you enjoyed sitting on a panel with a judge who was
visiting from another circuit. I saw Judge Palmieri sat with you.
Justice Ginsburg: Yes, twice. And Judge [Milton] Pollack from the Southern District. And
even Judge Lumbard sat with us. I enjoyed the visitors and regret that I
could not sit in other circuits.209
Dr. Marcus: Have senior judges played an important role on the D.C. Circuit?
Justice Ginsburg: Yes. As in most circuits, as the business increased, the circuit could not
get along without the seniors. So the senior judges, now more than ever,
are performing an invaluable service. They don’t have to sit, they could
draw their salary for life and do nothing, and yet most of them will give
their time, will take two-thirds of a regular load, just to help the circuit
stay current.
Dr. Marcus: So they have, indeed, played an important role on yours and every other
circuit.
Justice Ginsburg: Yes. And, as I said, now more than ever for two reasons. One, the
increasing caseload, and the other is the slow pace of the appointment
process. The circuit I serve as Circuit Justice, for example, the Second
Circuit, a relatively small circuit, until just this summer, had five
vacancies. Ralph Winter, the chief judge, was going hither and yon trying
to persuade people to visit to fill out the panels, to persuade busy district
judges to take a turn on the court of appeals. Now I think they’ve reduced
the vacancies by one, but they still have four vacancies out of, what, a
total of twelve or thirteen.
Dr. Marcus: That’s a very difficult situation, I think. I was going to ask, before your
own appointment to the Supreme Court, three of your colleagues on the
D.C. Circuit were nominated: Scalia, Bork, and Thomas. Did these
nominations affect the D.C. Circuit, the whole process, I mean, not just the
fact that they –210
Justice Ginsburg: And one almost-nomination, Douglas Ginsburg.
Dr. Marcus: That’s right. I forgot that one.
Justice Ginsburg: Scalia was the first, then Bork, then right on the heels of that failed
nomination, the almost-nomination of Douglas Ginsburg, and then
Clarence Thomas. I think the court was proud that so many nominees
were coming from the D.C. Circuit. It confirmed the view of some people
that next to this Court, the D.C. Circuit is the most important court in the
land.
Dr. Marcus: But did it affect your work in any way?
Justice Ginsburg: Only to this extent: when the justices — the two who achieved
confirmation — left, some reassignments were necessary. That is, some
opinions the elevated judges were assigned to write hadn’t been produced
by the time they took their seat on this Court. That put something of a
burden on the remaining judges. We had to distribute among us the
decisions that had not yet come down, the opinions originally assigned to
the departing judges.
Dr. Marcus: Did you or any of your colleagues ever get involved in the confirmation
process of one of the other judges?
Justice Ginsburg: No, just to congratulate them, wish them well, and in the cases of Scalia
and Thomas, there was a celebratory reception at the courthouse when it
was clear that the nomination would go through. A similar reception was
held for me.211
Dr. Marcus: But nobody ever asked for your assessment of their performance on the
court, an official asking on the point of someone in the Senate, for
example?
Justice Ginsburg: Asking me about –
Dr. Marcus: Or any other judge on the D.C. Circuit.
Justice Ginsburg: No.
Dr. Marcus: It just was a hands-off policy?
Justice Ginsburg: I think so.
Dr. Marcus: Because I’d never come across anything, but I wondered if they ever did
that.
Justice Ginsburg: No.
Dr. Marcus: From a comment you made, I’m not sure you agree with this, when you
said that this confirmed in people’s mind that the D.C. Circuit was the
most important court next to the Supreme Court. Do you think that the
D.C. Circuit is at least different from the other circuits?
Justice Ginsburg: There’s no doubt that it is. Just look at the character of the cases the D.C.
Circuit handles. The D.C. Circuit is mainly the government’s court.
Something like 70 percent of the cases involve the U.S., an officer of the
United States or a United States agency on one side or another. On the
other hand, the D.C. Circuit does not have a great many straight
commercial, private law cases, as other circuits do. So it has a distinct
caseload. That’s why the D.C. Circuit is a circuit unto itself, even though
its territorial base is a small city as opposed to, say, the Ninth Circuit,212
which has the vast western part of the United States in its domain. The
D.C. Circuit heard relatively few of the ordinary garden-variety tort,
contract, property cases. Most of its cases were administrative law cases.
Many cases came to the D.C. Circuit not from the district court, but
directly from an agency, review of an agency decision or an agency
rulemaking. So it had a distinctive caseload and, for me, frankly, a more
interesting one than the circuits with more commercial litigation.
Dr. Marcus: I heard a comment recently – I won’t say from where – about the quality of
agency lawyers as opposed to Department of Justice lawyers. Did you
have any opinion about that while you served on the D.C. Circuit?
Justice Ginsburg: It varied. Some agencies were better than others. Some were terrific.
When a lawyer from such an agency came into court, you knew you would
get a straight, complete view. Others offered us less than the best
lawyering. All agencies were not alike. The difference in the Department
of Justice is they are at least good, where the agency, it very much
depended on who was in charge at that particular agency and the quality of
the lawyers selected to work on the legal staff. “Uneven” is the right word
to describe the agency performance.
Dr. Marcus: Do you think that Congress pays more attention to the D.C. Circuit?
Justice Ginsburg: Probably, because it’s right here, and the Washington Post covers the D.C.
Circuit. So, yes, I think so, for that reason and another one, too. In the
other circuits, judges are drawn from that geographical region. The D.C.
Circuit (and since its creation in the 1980s, also the Federal Circuit) is the213
only one where the judges are drawn from a nationwide arena. So the
individual senators have less to say about D.C. Circuit nominees than they
do nominees from the various regional circuits.
Dr. Marcus: Did you, when you were on the court of appeals, have a relationship with
people in the Executive Branch or Congress?
Justice Ginsburg: I don’t know that you would call it a relationship. I did testify, along with
Pat Wald and Harry Edwards, when Chief Justice Burger proposed
introducing another tier, an intercircuit conflict resolver. I testified against
that proposal and said I did not think it healthy for the system to have yet
another tier.
But allied to that is a project that’s still ongoing, that Bob
Katzmann, who taught at Georgetown, both at the college and the law
school, had under his wing. Much judicial business is caused by statutes
that are unclear, that leave gaps. Congress sometimes inadvertently,
sometimes knowingly, passes the buck to the judiciary, and then we are
presented with hard questions of interpretation.
The idea Bob had, one I supported fully, was that there ought to be
a mechanism to call statutory interpretation cases declared divergently by
the circuits to the attention of the relevant committee of Congress.
Without any editorial comment, the transmission would effectively say,
“Here’s a statute,” it’s vague, there’s a gap, the court tried to fill it, another
court made a different guess. Why don’t you take a look at it and tell the
judiciary what it means. Numerous controversies about statutory214
interpretation have little to do with grand philosophies; they entail the way
Congress writes statutes, leaving much room for arguments lawyers make
on legislative meaning.
Now, if every time one of those cases came up or even half the
time, Congress would say, “We now understand where we were
inadequate, and we will promptly amend the statute so the judges will
know what the law we intended is.” For the most part, Congress doesn’t
do that. People who complain about the activism of the courts often fail to
comprehend that Congress provokes judicial activity by writing statutes
that can mean six different things.
Dr. Marcus: Did you have any personal relationship, not a business relationship, with
members of the Executive Branch or Congress? I’ve just been struck, as a
historian, how rules have changed in terms of the kinds of things judges
did in the 1790s. They were very close. Judges advised Presidents, they
advised Congress, on an individual level anytime that the person felt like it
or was asked. They felt no qualms about that kind of thing, and they
socialized with these people, and that was fine. I take it it’s somewhat
different today.
Justice Ginsburg: Yes. As far as advice is concerned, no one in the Executive Branch asks
me to give advice on any issue. But social engagements, people who have
been your friends, you don’t give them up on becoming a judge. You just
have to be very careful to remember, for example, which decisions came215
out, which ones are still in the works, so that you’re not speaking of things
still confidential.
Dr. Marcus: What about attorneys who appeared before you? Are there any in your
memory who were very special, very good, bad?
Justice Ginsburg: Yes, as I recall, some were very good and some were not so good in my
D.C. Circuit days. For example, Sally Katzen and her husband Tim Dyk
were stand-outs in the D.C. Circuit, both extraordinarily able lawyers. I
don’t remember the not-so-good lawyers as well.
Dr. Marcus: Do you think that the quality of briefs or oral argument differs in the D.C.
Circuit from here?
Justice Ginsburg: There’s probably a greater variety here. The D.C. Circuit had many repeat
players. That is, with 70 percent or so of the cases involving the United
States on one side or another, one side was commonly represented either
by agency lawyers or U.S. Attorney’s office lawyers or Department of
Justice lawyers, and those lawyers were at least competent.
Here you run the gamut from the very, very best to lawyers not
familiar with any appellate forum, no less this one. There’s a greater
variety, I think, in the Supreme Court than there was in the D.C. Circuit.
Dr. Marcus: And is there any problem with socializing with lawyers who appear before
you, either on the D.C. Circuit –
Justice Ginsburg: I hope not.
Dr. Marcus: [unclear] the whole town. [Laughter]216
Justice Ginsburg: This is a company town, and the company is the United States
Government. It’s a town filled with lawyers.
Dr. Marcus: That is difficult. Well, now I would like to turn to cases and sort of
general questions about judging. Just to start off, I know you gave me a
list of favorites, but do you have a view of what was the most important
case that you decided on the court of appeals?
Justice Ginsburg: I couldn’t single out one as being the most important. I can just say you
remember your first year more than others. Two cases we talked about,
cases I listed, one was Wright against Regan, were from the first year.
[unclear].
Dr. Marcus: This was the next one.
Justice Ginsburg: Those cases illustrate that no one who assigned opinions on the D.C.
Circuit was in the business of going easy on the newcomer. My first year
I wrote the opinion in Wright against Regan, and I also wrote for the en
banc court in the paper bag case, the Ross case. I was assigned an en banc
decision by the then-Chief, Skelly Wright, my very first year on the court.
Wright against Regan turned out to be an important case, even though the
decision itself was reversed by this Court. It was the case responsible for
keeping the Bob Jones case alive.
Dr. Marcus: We will get to talk about Wright v. Regan in much more detail. Do you
remember any cases being the more difficult?
Justice Ginsburg: Many of the blockbuster agency cases, the rulemaking cases, were hard
cases. The D.C. Circuit put those cases off the regular track. They were217
labeled complex cases and were assigned to a panel from the beginning.
We tried to control the appeal by announcing what issues we wanted
briefed. We were fairly well acquainted with the case by the time it
reached the oral argument stage. We generally divided those opinions
three ways so one person wouldn’t be saddled with the entire writing
burden.
One such case involved the regulation of surface mining. It was a
monster case, with umpteen issues. This shows the deceptiveness of
statistics that treat all cases alike. A criminal case with a single defendant,
a jury trial and verdict, no dispute about the law, presenting questions like
the sufficiency of the evidence, those cases take very little judge time.
Contrast them with the three-cornered agency suits, in which a rulemaking
that may have taken years in development is published. The agency,
defending its position, is challenged on one side by, say,
environmentalists, who think the rules are too lax, and by industrialists on
the other side, who say the rules are too stringent. That kind of lawsuit
could be very difficult. First, you had to have some understanding of the
technology involved, and then try to come to a correct decision in the face
of the sharply conflicting views presented. Those cases were the hardest
ones, the reviews, not of trials, not of hearings at the agency, but of
rulemakings.218
Dr. Marcus: When you did decide in those cases, did you feel when the moment of
decision came that you had really learned enough about the problem to
make a decision like that?
Justice Ginsburg: Yes. In the beginning you are more than a little frightened, fearful how
you will ever master the case. Then, after weeks and weeks, you begin to
feel comfortable, at least with your understanding of that small corner of
the industry, so that you can deal with it intelligently and fairly. Then,
within a few months, almost all that learning will be gone from your head
as you go on to the next big case.
Dr. Marcus: When you think back on all of the cases, and you’ve had so many, can you
think of certain opinions of yours that will have a significant impact over
the ages?
Justice Ginsburg: I would not point to any one decision. I’d rather point to my approach,
which I hope is recognizable. It reflects my way of thinking about what
judges should be doing, what is the art of a judge, what are the limits of
judging.
Dr. Marcus: That’s in line with a question I have, because if someone were to
summarize your jurisprudence on the court of appeals, do you think that
person would get it right? Because there are many judges who say every
case is separate, it’s impossible to draw any kind of common thread,
common conclusions, from the corpus of a judge’s work. Do you agree
with that or disagree?219
Justice Ginsburg: Well, I disagree, but I also disagree with the people quick to type judges as
either soft on crime or hard on crime. One of the things said over and over
during my nomination to this Court was, “Despite her ACLU years, she’s
very tough on defendants, criminal defendants.” I look back on the record,
I think, for example, of the paper bag case first year on the D.C. Circuit,
and several others, and I wonder how people came to that conclusion. It
may be that I have not been on the same side as Judge Mikva or Judge
Wald in one case or another, and people say, “Oh, well, that was a
criminal case, and Judge Ginsburg dissented, so therefore she’s tough on
crime. Otherwise she would be with them.”
But if you look at some of the criminal cases for which I’ve written
opinions for the panel — the most notable yet characteristic example, I
think, is the Ross case my first year. The decision I wrote for the en banc
court was reversed by the Supreme Court. But part of my reasoning was
followed by Justice Stewart. I said there had to be a rule, and he agreed,
but the rule he picked was the one that favored the police, and mine would
have favored the suspects. Typing people as “liberal” or “conservative” is
not terribly useful, I’ve found and the labels are often inaccurate.
Dr. Marcus: One of the things that you read now is that the traditional
conservative/liberal split on criminal issues is sort of reversing itself and
that, in fact, those judges typed “liberal” are being harder on criminal
defendants. Do you see any of that?220
Justice Ginsburg: No. If you look at the lineups on this Court, you will see how
questionable that kind of characterization is. One of my favorite cases
from this term is the Muscarella case, where Justice Breyer wrote for a
majority a pro-prosecution decision. I wrote for the dissent. The statute
was ambiguous. I called it for the suspect, for the defendant, and my
fellow dissenters were the Chief, Justice Scalia, and Justice Souter. That
alignment should give people who try to type us cause to pause. It’s
obvious that the Chief assigned the dissent for that group to me. We
would have held for the defendant. The majority, led by Justice Breyer,
held for the government. In many criminal cases our lineups defy easy
labeling.
Why were Scalia and I together? Because the statute left us at sea
as to what Congress meant, so we followed the rule of lenity. Under that
rule, if Congress isn’t clear, you read the ambiguity in favor of the
defendant, not against the defendant.
Dr. Marcus: Well, people just choose not to pay attention to certain things like that
when they want to use these labels, I guess.
According to the summaries you gave me – you may remember at
the very beginning of this – you have participated in 406 cases on the D.C.
Circuit, which is a lot of cases, and we can’t discuss all of them or even a
good number, but you gave me a list of twenty of your favorite cases, and
I was just wondering what criteria you used to establish your favorite
cases. Why these twenty?221
Justice Ginsburg: Maybe the correct label would be “most memorable” cases. Obviously,
for me, Murray against Buchanan is memorable because there was a
unanimous resolution of the House of Representatives condemning the
decision. That doesn’t happen every day. And Wright against Regan is
memorable because it was the case that allowed Bob Jones to go forward
in the Supreme Court. Others on the list, I’m sure I had a reason for
putting them on. They are not necessarily my favorite cases, but they are
memorable cases.
Dr. Marcus: Well, let’s turn to Wright v. Regan. You’ve indicated that you chose it
because it enabled another case to go forward to the Supreme Court. Just
glancing at it, I think a normal person would be surprised that you would
choose – I take it – was this your first opinion that you wrote for the
Court?
Justice Ginsburg: Oh, no. My first opinion came out in October an administrative law case.
Wright v. Regan was calendared for the fifth or sixth sitting that first term.
Dr. Marcus: You said that the Supreme Court did reverse.
Justice Ginsburg: Yes.
Dr. Marcus: Let me put it this way. Since you said you were happy that it kept Bob
Jones alive, were you aware of that while you were deciding the case?
Was that in the background?
Justice Ginsburg: No. The case presented an important standing question, whether black
parents could complain to a court about the government giving 501(c)(3)
status – that is, charitable status – to schools plaintiffs alleged were “white222
flight” schools. As the suit, you see, is against the Secretary of the
Treasury, it was Treasury, the IRS, according to the complaint, approving
schools to receive charitable donations which would be deductible by the
donor, tax deductible by the donor, and these schools were discriminating
on the basis of race.
One answer to the lawsuit was, “Black parents, you are
intermeddlers. This is not your concern. This is for the government to
administer. You are not hurt in the legal sense.”
The black parents’ point was something the Supreme Court, when
it reversed, did not fully grasp. That is, they didn’t want their children to
attend these schools. They weren’t suing the Secretary of the Treasury so
that their children could go to these schools. What they were saying is,
“The United States is putting its stamp of approval, its imprimatur, on
institutions that discriminate invidiously on the basis of race, and having
those institutions in the communities where we live stigmatizes us, so we
don’t want the United States to put its stamp of approval on these schools.”
Incidentally, I’m sure they recognized that if the school didn’t have
the benefit of 501(c)(3) status, not many people would volunteer money to
keep the school going. But the injury they were alleging was a stigmatic
one, that their government, by allowing charitable contributions to be
made to organizations that said black people were inferior, by that action,
the government was stigmatizing the members of the black community.
That was their position. I thought it was a powerful one.223
And even though the Supreme Court for some years before Wright
against Regan had been tightening up on what it takes to qualify for
standing, as I pointed out in the opinion, one could see two lines of
decisions. One line was composed of cases that didn’t involve race, cases
that involved welfare, and the other line presented in combination race
plus education. Whenever that combination was present, race and
education, the Court always found standing, because the elimination of
race discrimination was such an important value.
I pointed that out, and said, “Yes, there are inconsistent lines of
opinions. There are cases concluding that standing requirements were not
met. But other decisions concluded that there was standing. What is
different about the cases in which the Supreme Court found standing?
Race plus education.
It was a very simple case looked at that way, and this Court’s
opinion never really faced up to the fact that the Court was reversing its
course on what up till then had been a very solid position. That is, people
who were complaining about racial discrimination in education, people
who belonged to the group that has been discriminated against, have
standing to complain in court, to challenge their government’s action.
It was an important decision from that point of view, and I tried to
write the opinion for the D.C. Circuit to say to the Supreme Court, “You
can continue in the direction you have been going up to now, recognizing
that race in the educational context is special.” But the Court did not224
choose to follow that route. It was an important precedent. I still think it’s
unfortunate that the Supreme Court did not affirm the D.C. Circuit’s
decision.
The Supreme Court’s decision is today a leading precedent on the
question of standing to sue. It was a turning point, I think, in the Supreme
Court’s jurisprudence on questions of standing. Although I’ve said Wright
against Regan is memorable because it saved Bob Jones, it is also an
important case in its own right.
Dr. Marcus: I’d like to look at two things. Can you explain how it saved Bob Jones?
Justice Ginsburg: Bob Jones and Goldsboro were two schools that discriminated on the basis
of race. Their discrimination was admitted. It was tied into their religious
beliefs. The government had taken away their tax-exempt status, and the
two schools sued to get it reinstated. They said, the schools said, “We
qualify for charitable status.” The government won that case in the district
court and it won it in the court of appeals. Bob Jones and Goldsboro then
sought this Court’s review.
In between the government’s victory in the Fourth Circuit and the
Bob Jones and Goldsboro’s petitions to this Court, the government
changed its position and said, in effect, “We’re going to walk away from
our winner. We are going to give the tax exemption to Bob Jones and
Goldsboro.”
At that point, if the government had acted and granted the
exemption, there would have been no litigant in the picture to challenge225
the government’s switch. The government had been the successful
defendant in that case. By giving the plaintiff schools the relief they
wanted, the tax-exempt status, the government would have made the case
moot. So the lawyers in Wright v. Regan said, “If the government goes
ahead and gives tax-exempt status to Bob Jones and Goldsboro, that will
jeopardize the relief we have obtained in this case, because if those
schools get tax-exempt status, then taking it away from the schools we’re
challenging would be inconsistent. So in order to preserve the judgment
we’ve gotten from the D.C. Circuit, that we have standing to litigate this
matter, we must make sure there’s something left to litigate. Therefore, we
would like the D.C. Circuit to issue a stop order to stop the IRS from
giving tax-exempt status to Bob Jones and Goldsboro.”
They presented that somewhat strained position to us. The panel
was the then-Chief Judge Skelly Wright, Ed Tamm, and I was the third
judge. We got the papers, and the three of us knew immediately what the
plaintiffs in Wright v. Regan were trying to do. Even though Judge Tamm
had dissented in Wright v. Regan, we were unanimous in deciding to issue
the stop order so that the tax-exempt status which would have been
granted that day was not given and the Bob Jones case could go forward in
the Supreme Court. I think almost everyone involved breathed a great
sigh of relief when that happened.
So we issued a temporary stay. We invited briefing on the
question whether we should continue the stay. At that point, Judge Tamm226
broke from Chief Judge Wright and from me. We said, essentially, “It is a
serious question whether we have authority to do anything relating to the
Bob Jones case. Having taken time out to decide whether we had power
to decide, we’ve now concluded that the question is so unusual, we ought
not resolve the matter in the first instance.” We remanded the case to the
district court for that court’s consideration whether the federal judiciary
had authority to keep the IRS at bay while the Supreme Court heard and
decided the Bob Jones case.
So the matter went back to the district court, and eventually the
Supreme Court decided the Bob Jones case. That made it unnecessary,
indeed improper, for the district court to rule, because the question had
become academic.
What was most memorable for me, at the critical moment, all of
us, whether you label us conservative or liberal, Judge Tamm along with
Judge Wright and me, said, “Yes, we should. This is a serious enough
matter for us to issue a stop order and not shy away and say, ‘We will let
the executive do what it’s planning to do.'” All three judges, no matter
where they were on the question presented in Wright v. Regan, joined in
that stop order. I will never forget the conversation I had with Skelly
Wright and Ed Tamm when we decided to do what we did.
Dr. Marcus: In what way?227
Justice Ginsburg: Just to say, “Do you know what they’re asking us to do?” Yes. Everyone
understood exactly what was at stake. I drafted the order, it was very
brief, after talking to both of them about what the order should convey.
Dr. Marcus: And, of course, when you read the opinion in Wright v. Regan, you don’t
have any idea.
Justice Ginsburg: Because this came after.
Dr. Marcus: Right. After. But, I mean, that’s why this is very interesting to do, so that
you get that information that you wouldn’t have ordinarily. When you had
oral argument on Wright v. Regan, did the lawyers use Bob Jones to
influence you in any way?
Justice Ginsburg: No. In fact, I found the briefs and oral argument in Wright v. Regan
disappointing. The lawyers probably thought they did a great job, but my
opinion did not derive much from the briefs. The race plus education
cases on one side, the other standing cases on the other side, that clear
picture was not drawn in the briefs. I worked very hard on the opinion
because I couldn’t accept the arguments made by plaintiffs in their briefs.
Dr. Marcus: What was their argument?
Justice Ginsburg: I can’t recall it with any clarity now. Like most lawyers, they placed
several different strands of argument in their briefs. They didn’t home in
on the two lines of decisions as I have just described them.
Dr. Marcus: This interests me, because one of my questions is, I read the opinion and I
got the two divergent lines of cases, but what I would like to know in
terms of the art of judging, now, you said this wasn’t presented in the brief.228
Now, what makes you, as a judge, both look for this elsewhere – I mean,
is it a predisposition to a certain –
Justice Ginsburg: I shouldn’t convey the impression that the lawyers failed to cite the
relevant cases. They did. Their presentation just hadn’t been packaged in
the same way. The thinking reflected in the opinion owes something to
the Hart and Sacks legal method materials I studied as a law student, and
later, as a law teacher. One chapter in those materials concerned two
divergent lines of cases in Massachusetts. The candid and I would call it
conservative reasoning reflected in the D.C. Circuit opinion — it doesn’t
wave any political flag, it takes the approach of a jurist bound by Supreme
Court decisions and trying, as a good common-law lawyer would, to
figure out what is the theme behind them.
Dr. Marcus: But of course, Judge Tamm, in his dissent, which was very strong, I think
–
Justice Ginsburg: Yes.
Dr. Marcus: – took great issue with your sort of plucking the meaning for “standing”
out of the line of cases you chose to follow, rather than – what is the other
one called – Eastern Kentucky.
Justice Ginsburg: Yes. Eastern Kentucky was a case about a hospital that decided to cut
back its services to the poor, and the question was whether the Internal
Revenue Service could allow it to keep its tax-exempt status despite the
cut back. The Eastern Kentucky Welfare Rights Organization alleged that229
welfare recipients would get less health care if the hospital retained tax-
exempt status without satisfying the requirement that it serve the poor.
The Court said, “Eastern Kentucky Welfare Rights Organization,
you have no standing to bring this challenge, because who knows? If the
hospital didn’t have tax-exempt status, it still might decide not to give
extensive services to the poor. So what you’re arguing is speculative. We
can’t tell whether the relief you’re asking for denying the hospital tax
exempt status — would do you any good.” That was Eastern Kentucky.
My point in Wright against Regan was that the relief those
plaintiffs requested — removal of the government’s sign of approval for
“white flight” schools — was just what they wanted, nothing more. They
did not want their government to bless these schools. They weren’t
anticipating increased services or any other economic gain. They just
said, “Keep your imprimatur off this, government.” So for me it was quite
a different matter than the economic argument relied on in the Eastern
Kentucky case.
Dr. Marcus: And I know in one of the cases, I think it’s called Norwood –
Justice Ginsburg: Yes. It’s a textbook case.
Dr. Marcus: – where Chief Justice Burger wrote, and you took a quotation from that
case which seemed to me exactly on point here to support you, and yet he
joined the majority when the Supreme Court reversed on this point.
Justice Ginsburg: Yes. They very silently passed over that point, they didn’t say anything
about it.230
Dr. Marcus: I found that very striking as I read this. So I always wonder, when you see
that, what is driving the majority opinion? They’re looking further down
the road at a possible different question?
Justice Ginsburg: Well, this is just my speculation. In the time between the D.C. Circuit’s
decision and the Supreme Court decision, a new member joined the D.C.
Circuit, Bob Bork, who had strongly restrictive ideas about standing, very
much like the ideas reflected in the Supreme Court’s decision in Allen v.
Wright, which reversed Wright v. Regan. Allen v. Wright was an
O’Connor decision, but by that time the Bork view of standing was well
known in the D.C. Circuit. The view expressed by the Supreme Court in
Allen v. Wright seems to me altogether in accord with thinking mapped
out by Judge Bork on the D.C. Circuit. (Perhaps it is not coincidental that
one of Judge Bork’s first law clerks, Richard Taranto, served Justice
O’Connor the next term, the term Allen v. Wright was decided.)
Dr. Marcus: When you were assigned this case and Judge Wright would have been –
was he the presiding judge then?
Justice Ginsburg: Yes.
Dr. Marcus: Was he in any way influential in the way that you shaped the case?
Justice Ginsburg: No.
Dr. Marcus: Not at all?
Justice Ginsburg: No. I don’t think I had any comments from him except a very quick join
when I circulated the opinion.231
Dr. Marcus: And when you issued, when the Court issued this opinion, and this was in
your first year, right?
Justice Ginsburg: Yes.
Dr. Marcus: I know you don’t like the labels, but did this sort of tag you as a Bazelon-
Wright liberal?
Justice Ginsburg: Perhaps, but I was certainly considered to fall to the right of Carter’s first
two appointees to the Circuit. There were some cases, probably even that
first term, in which I did not stand together with Mikva or Wald. I tended
in those years to be closer to Judge Edwards in the way we thought and
came out than to either Wald or Mikva.
Dr. Marcus: Now, I know we’ll be discussing other cases that have standing issues as
we talk about your favorites, but as a general matter, have your views on
standing changed over the years?
Justice Ginsburg: No. Of course, I live with the precedent my Court makes, but what I said
in Wright against Regan is what I think about standing. The United States
jurisprudence is narrower on standing questions than one encounters
elsewhere in the world. To take another basically common-law system,
Israel, for example, their Supreme Court takes a more generous approach
to standing than we do. In constitutional courts abroad that decide
questions not cases — abstract questions get referred to them — their
dispositions don’t have any standing ingredient at all.
Standing is part of our case or controversy requirement. We don’t
allow anyone to come to court saying simply, “Here’s an issue I’d like the232
court to decide.” Litigants must have a personal stake in the case. But is
there any doubt that black parents have a stake in whether white-flight
schools get tax-exempt status? I don’t think there is. One should use a
little common sense, too, in approaching these issues. One can tell the
difference between a political dissident who would like Congress to pass a
certain law or doesn’t like a law that Congress did pass and just says, “I
want to challenge in court that legislative action or nonaction.” We can’t
have people, simply because they’re citizens and voters, bringing whatever
they will into court. We require litigants to have a genuine stake that
distinguishes them from the rest of the world. That’s what you look for.
That’s what I look for in deciding a standing question: is this person or
group distinct from the general public in the impact of this matter on that
individual or that group?
Dr. Marcus: So over the years on the court, you weren’t affected by some of your
colleagues on this circuit, like you mentioned Judge Bork or Judge Scalia
or Silberman?
Justice Ginsburg: Well, I understood Bob’s position on standing. I thought he had it worked
out very well, and as I said, his reasoning is reflected in the Supreme
Court’s Allen v. Wright decision. I disagree with it, though I understand its
appeal.
Dr. Marcus: And you still do, is what –
Justice Ginsburg: Yes.233
Dr. Marcus: The Supreme Court reversed your opinion on standing, but you did discuss
other issues in Wright v. Regan.
Justice Ginsburg: Yes, but those didn’t go up to the Supreme Court. The Court just dealt
with standing.
Dr. Marcus: So are those still good law, do you know?
Justice Ginsburg: I think they’re academic, because if you can’t cross the standing threshold,
the rest of them don’t come up.
Dr. Marcus: Because certainly there were some interesting questions in there, like –
well, that must come up constantly, congressional appropriations riders –
Justice Ginsburg: Yes.
Dr. Marcus: – on bills saying the IRS initiative, things like that.
Justice Ginsburg: My “decision” would have only persuasive value on those questions
because the Supreme Court reversal of the decision leaves my resolution
of those issues with no anchor. So it’s comparable to a law review article,
whatever I said on the other issues.
Dr. Marcus: Well, they were interesting to read.
Justice Ginsburg: Yes.
Dr. Marcus: Definitely. I thought there was much to be taken from them, and I’m glad
they’re there.
Justice Ginsburg: They’re there, unlike Murray against Buchanan, where the panel decision
never made it to the bound Federal Reporter volume. It’s just not there.
You have to get it off Lexis or Westlaw.234
Dr. Marcus: We’re going to turn to Murray v. Buchanan now, actually, and that, of
course, is my first question. Why wasn’t it published?
Justice Ginsburg: It was published. It was published in the advance sheets, the paperback
F2d, but when the court granted rehearing en banc, the case was put on
hold. The court then vacated the panel decision, so the opinion was pulled
from bound volume publication. That can happen in the D.C. Circuit
when the en banc decision is made early enough to stop publication of an
overturned panel opinion. Sometimes the interval is longer so the panel
opinion, though later overturned, ends up in the bound volume. In this
case, the decision was vacated before West came out with the bound
volume. So it’s not there.
Dr. Marcus: Given that the decision is not available easily, I would like to hear very
much more about it, because I found it fascinating in reading it.
Justice Ginsburg: Again, the case presented a standing question. Standing was the only
question. And we said repeatedly – I wrote for myself and Judge Bazelon
– that we do not reach the merits, we intimate no view on the question
whether the challenged expenditures for the chaplains’ salaries violate the
Establishment Clause. It was simply a question whether the atheists (the
plaintiffs in the case) had standing to sue. There was a precedent directly
in point, Flast v. Cohen. It is the one area where there is such a thing as
taxpayer standing in federal court. Flast said there is taxpayer standing to
challenge a federal expenditure as in conflict with the Establishment
Clause. If the government spends money to establish a church, to take the235
most extreme case, that affects everyone the same way. No group can
claim a personal stake. It’s not a situation in which one group rather than
another can press the issue.
The Supreme Court decided in Flast v. Cohen that Establishment
Clause challenges would be the exception to the main rule of no taxpayer
standing. If you’re challenging the government’s spending to establish
religion, you do have taxpayer standing, and that’s all we held in Murray
against Buchanan. The opinion noted that the parties stated at oral
argument that they did not want us to go on to decide the merits. We
asked, suppose we say the plaintiffs have standing or even, arguably, they
have standing, why not then wrap up the whole case by deciding the
merits of the constitutional question, does it violate the Establishment
Clause to pay the chaplains? The litigants didn’t want us to do that. They
said, if we held there was standing to maintain the suit the case should go
back to the district court where they expected to develop a more complete
record on the history of the challenged practice.
So we had no choice. We couldn’t go on and decide the merits.
They rightfully pointed out that we were a court of review, not first view,
and they wanted to make their first presentation in the district court. (The
district court had initially dismissed the case for lack of standing and/or on
political question grounds.) We would have been glad to go on and decide
the whole case. If we had decided it, we would have come out just the
way the Supreme Court did in Marsh v. Chambers, the Nebraska236
Legislature’s chaplain case. We would have said the chaplains’ offices
were traditional, like “In God We Trust” on coins and the clerk or bailiff’s
cry, “God save the United States and this Honorable Court.” But we didn’t
have that option.
So all we decided was that the atheists had standing to make the
challenge. That modest decision so angered Congress that it provoked a
unanimous resolution in the House of Representatives condemning the
godless decision of the D.C. Circuit. Now the House is filled with lawyers
who, if they’d read the opinion, would have seen that it trains precisely on
the standing question and doesn’t touch the merits. That’s when I came to
appreciate, before Fundamentalism was as pervasive as it is now in the
country, when you touch that religion nerve, sparks are generated as in no
other area.
Dr. Marcus: As a lawyer’s question, can you skip over jurisdictional issues?
Justice Ginsburg: Well, I think you sometimes can, but many of my colleagues disagree with
me.
I spoke about a great judge on the D.C. Circuit many times, Carl
McGowan. His view was, if you have an easy question on the merits and
a really hard question of jurisdiction, standing, justiciability, why not say,
“We’ll assume for the sake of the argument that there is jurisdiction, and
dispose of the case on the merits, because it’s clear that the party asserting
no jurisdiction would prevail on the merits.” Carl thought that was sound,
so do I. But the Supreme Court has more recently held that jurisdiction237
must be decided first and definitively, because jurisdiction is a matter of
power, and if the court doesn’t have power to deal with the case, how can
it say anything about the merits? Those are the two views. One is, you
can assume arguendo that the court has power to deal with the case, and
then say, “But the merits are so clear that the person who is asserting
jurisdiction must in any case lose.” You could use that approach only
when the person who was invoking jurisdiction will lose on the merits.
I continue to believe that’s a sound thing to do. It would not be
sound if there really was controversy on the court about how the merits
should come out. But the majority of the D.C. Circuit nowadays and the
majority of this Court rejects that approach. They take a very, some might
say rigid, others might say pure, view that first you decide the power
question, and until you decide that the court has power to proceed, you
can’t go on to any merits questions.
On today’s Supreme Court, Justice Stevens shares the view that I
take and that Judge McGowan took, that if you have a really tough
jurisdictional question, leave that for a day when it matters, when the
person who is invoking the power might prevail on the merits. But, as I
said, that’s currently a minority position.
Dr. Marcus: You mentioned that the lawyers in Murray v. Buchanan – do I take it on
both sides or just on one side, they asked you not to –
Justice Ginsburg: Both sides.
Dr. Marcus: Both sides.238
Justice Ginsburg: Both sides requested, if we decided there was standing, that we send it
back to the district court.
Dr. Marcus: Now, are you obliged to listen to them?
Justice Ginsburg: It would be extraordinary that you would not do that, because we operate
on the basis of party presentation. So if you’re asking the question could
we have said, “This is so easy we don’t want to burden Judge Oberdorfer
on the remand.” Could we have? Yes. Should we have? I think not.
When the parties say, “Remember, you’re the second instance, not the first,
in the hierarchy, and we haven’t heard from the court of first instance on
this question,” I think it would take a rare case for me not to honor that, to
disregard that I am sitting on a court of review and not one of first view.
Dr. Marcus: Do you remember the oral argument well? Do you remember the
attorneys who argued?
Justice Ginsburg: I remember Mike Davidson argued very well for the Senate, and I don’t
have any clear memory of the other arguments, but I remember being
struck by how well he presented that case for the Senate side.
Dr. Marcus: And I understand your comment about his wanting to develop the history,
because I got involved in supplying – I didn’t know. I knew Mike
Davidson. I didn’t know what he was working on particularly, but he was
always looking for material. And I’ve never heard him argue. I just know
him to talk to.
Justice Ginsburg: He’s very, very –239
Dr. Marcus: And so he was very good. I do remember he showed me, subsequently, I
think it was after Marsh v. Chambers was decided by the Supreme Court,
but he had developed a historical record that was so thick on this question.
I guess it came out on his side for this case, anyway, for Murray v.
Buchanan.
Justice Ginsburg: Yes.
Dr. Marcus: Now, your treatment of standing, which really, to me – and maybe this is
wrong – didn’t seem as serious a question here as the political question
was in this case. I mean, I looked at it. It seemed very convincing to me
what you said just previously about Flast v. Cohen intervening between
the famous [unclear].
Justice Ginsburg: Right.
Dr. Marcus: And telling you specifically, it seemed sort of tailormade for this particular
case, that exception. And yet, clearly, Judge MacKinnon was very upset
about both, although he spent his time also, I gather, on political question.
I also liked what may have been a small point, but the fact that the
$80,000 sum for the chaplain’s salary was not a large enough expenditure
to trigger any of this.
Justice Ginsburg: Yes. I said something about it being, I don’t know how many times what
was then the amount-in-controversy necessary to get into federal court, but
I love George MacKinnon’s opinion because if you analyze it, it’s so clear
that he did decide the merits. He decides the merits, and then he says –
Dr. Marcus: Oh, yes. He said it.240
Justice Ginsburg: – it’s a political question. You said that maybe the political question issue
was the harder one. Not for me, because I have been powerfully
influenced by Lou Henkin’s article in the Yale Law Journal asking , “Is
there a political question doctrine?” I think ninety-nine out of a hundred
of the political question decisions are really cases in which the Court is
deciding the merits in this sense. The Court says the Constitution gives
this decision to another decision-maker to resolve finally. Not that we
can’t touch it because it’s a political question. Rather, the Constitution
says this is business for Congress to decide or the President to decide.
Impeachment is the clearest example of that. The judiciary is not the
forum to either indict or try an impeachment case, as the Constitution
explicitly gives the question to another authority.
The same analysis applies to questions exclusively in the
Executive’s domain. The Constitution commits certain decisions, like the
pardon decision, not to the courts but to the President. Political question
decisions, viewed in this light, are not threshold determinations that “we
can’t touch the matter.” What really goes on, we’ve looked at the
Constitution and are satisfied that the matter has been committed by that
fundamental instrument of government to another branch for final
decision-making, and not the Supreme Court. I am concerned about the
notion that there is a loose political question doctrine, that truly is
political, allowing courts to drop politically hot potatoes. Courts have
been given no such discretion to decline to adjudicate.241
If the Constitution gives the judiciary the authority to decide a
case, we must decide it no matter how hot politically it is. In my view,
maybe there is no such thing as a genuine political question. Instead, so-
called “political-question” decisions can be explained as cases in which
the court has analyzed the problem and concluded, “This is a matter that
the Constitution left entirely to the judgment of another decisionmaker.”
In all the years I’ve been a judge, I have never called an issue a political
question. There may be another threshold barrier to adjudication, but I’ve
never come across a political question of a kind that stops courts from
saying what the Constitution requires or means.
Dr. Marcus: Now, I noticed in the footnote where you cited Professor Henkin, and that
article, it seemed fairly obvious. I mean, MacKinnon says you can’t
decide if it’s a political question until you know the answer.
Justice Ginsburg: Right. That’s why those decisions are not altogether satisfying, because
the court first decides the merits and then labels the question political.
The decisions say, in effect, because the Constitution lets Congress do
this, it’s a political question. That is not very satisfactory reasoning. If I
were in the classroom wanting to get across the artificiality of labeling a
question political, Murray v. Buchanan would be the case I would use.
Dr. Marcus: Well, why don’t you explain what the so-called political question was in
this case, that the hiring of chaplains was something assigned to Congress
in the Constitution.242
Justice Ginsburg: The judiciary, in the main, had nothing to do with the employment of
officers of Congress. My favorite case in that line is the one about the
salary paid to the woman who headed the cafeteria operations of the
House of Representatives. Walker v. Jones, I think it was. One day the
head of the Housekeeping Committee, Jones, a member of the House
from, as I recall, Oklahoma, was reviewing the budget for food services,
and he observed, “You’re paying a woman $40,000 for that job, to run the
cafeterias? That’s too much to pay any woman.” After she was fired, she
sued, alleging that she was fired because she was a woman. The answer
from the House was, “We’re not going to engage in a fight with you about
that. You have no right to sue, because your employment is a ‘political
question.’ Judges may not address questions relating to the hiring or firing
of people who work for members of Congress.”
The D.C. Circuit held, I wrote the opinion, that the case did not
present a political question. We said, yes, the judiciary would have no
role to play if the employee were a legislative aide, a job where there is an
intimate relationship between the member of Congress and the staff
person. But there are certain things people do for the House and the
Senate, like park cars, or run the gym – I don’t know if they have
attendants in the bathroom – those, what I called auxiliary services, had
nothing to do with making legislation. So we drew a distinction. We said,
not that the hiring of a legislative assistant was a “political question,” but
that the Congress has the prerogative, each member, to hire and fire staff243
without anyone looking over the member’s shoulder, because that’s
necessary for the way they work. But as far as the “auxiliary services” are
concerned, there’s no political question, and no immunity from judicial
review.
There was no question, by the way, in Murray v. Buchanan about
having Congress open with prayer. That was conceded to be okay. The
only question was spending taxpayers’ dollars on it.
Dr. Marcus: And that received – I assume Mike Davidson must have argued the side
that said this was their own internal business and you had no –
Justice Ginsburg: Right. Yes.
Dr. Marcus: The court should not interfere, and I gather the district court had not
treated it as a separate issue.
Justice Ginsburg: The district court dismissed the atheists’ suit on alternate grounds, political
question and standing, and we had reversed the district court.
Dr. Marcus: But apparently the district court’s analysis didn’t separate them the way
that you did.
Justice Ginsburg: No, it didn’t. That’s right. It didn’t. It sort of melded the two doctrines
together.
Dr. Marcus: Without giving you the means to deal with the political question, and you
used Powell v. McCormick as a very powerful precedent to say that this
was indeed not a political question.
Justice Ginsburg: Right.244
Dr. Marcus: But you also went back to a case I have to admit that I never heard of,
from 1892. You don’t remember it either? [Laughter] Called U.S. v.
Ballin.
Justice Ginsburg: Oh, yes. I remember that.
Dr. Marcus: That’s a great quote.
Justice Ginsburg: Yes. That’s a great old case.
Dr. Marcus: And it said that, yes, the Constitution lets Congress select its officers and
make its own rules, but it’s subject to a limitation. That’s from 1892.
Justice Ginsburg: Yes.
Dr. Marcus: And the limitation was that you cannot ignore constitutional restraints or
violate fundamental rights. I mean, that is something I have to say I
haven’t seen very much quotation of, and again, it seems very much on
point. You do say in a footnote that if Congress – it’s just suggestive, I
think – that if Congress had paid no salaries to the chaplains, that the
result might be different.
Justice Ginsburg: Yes.
Dr. Marcus: Why would that be?
Justice Ginsburg: One reason is a case called Valley Forge v. Americans for Separation of
Church and State. In that case, this Court refused to extend the Flast v.
Cohen precedent on standing to the Property Clause of the Constitution.
Valley Forge involved the donation of surplus government property to a
religious institution. The Court held that the Flast v. Cohen precedent245
applies only to dollars, not property. So it’s only when dollars are
involved that the Flast precedent on standing works.
Dr. Marcus: But would that be only with regard to the standing issue, not the political
question issue? In other words, if they hadn’t paid money.
Justice Ginsburg: Right.
Dr. Marcus: In reading Judge MacKinnon’s dissent, aside from the question we talked
about, about going into the merits in order to decide the political question
issue, and you suggested in your opinion that that might mean the end of
the doctrine altogether, which made some sense. You come away
thinking, even if he believes that you go into the merits to do this, that he
has gone a bit far in arguing that the Constitution recognizes God and
religion and somehow that decides this case.
Justice Ginsburg: George was very fond of that decision.
Dr. Marcus: Was he? Really?
Justice Ginsburg: So fond of it that he issued it a second time. See the en banc, which is
published in F.2d. When George knew the three-judge panel decision
would not be published in the bound volume, he attached his dissent from
the panel decision to the en banc per curiam disposition. I wrote the per
curiam. MacKinnon concurred separately. The per curiam just said, “It’s
all over. The Supreme Court has decided Marsh v. Chambers.” George
then reproduced his entire panel dissent, or almost the entire dissent,
ending with the same thought, that “Goodness knows Congress needs a
prayer.”246
Dr. Marcus: Was he a former congressman?
Justice Ginsburg: Yes.
Dr. Marcus: Well, that’s what struck me. Do you think that this simply hit home, that
he must really defend the prerogatives of Congress, as they say?
Justice Ginsburg: Yes.
Dr. Marcus: He went to such lengths in that dissent to do that. It was very striking.
Well, I was going to ask you to describe what happened to this case,
because I didn’t know, after you made your decision.
Justice Ginsburg: There was a petition for rehearing and a request for rehearing en banc,
which the D.C. Circuit decided to defer, pending the Supreme Court’s
hearing and decision in the Marsh case. Although I remain persuaded that
the positions we took on standing and political question, that the positions
are right, obviously several of my colleagues didn’t agree, otherwise they
would not have voted to en banc the case. But having done that, we
discussed the case at a conference and decided, let us sit this one out until
the Supreme Court decides Marsh v. Chambers.
Before the per curiam came out, there was further discussion.
Even though there was no issue on the merits anymore, some suggested,
shouldn’t we decide the standing and political question issues, shouldn’t
we say whether we ever had power to decide the merits? My argument
was that there is a limit beyond which you cannot push the “jurisdiction
first” position. Is a court obliged to decide whether it has power to decide
nothing, for there was nothing to decide once Marsh v. Chambers set the247
relevant precedent. It was not easy to persuade the full court to sign on to
the per curiam. There was considerable support for dealing with the
standing and political question issues. Eventually, thank goodness, the
court decided it would go with the very brief per curiam.
There were many redrafts before the brief disposition issued. I settled for
what I could get, and I doubt that we preserved any files showing the
original draft of the per curiam.
Dr. Marcus: You should have preserved them. You’re better than that.
Justice Ginsburg: It was a very slim per curiam. My name isn’t on it, but it was one of my
great achievements, to keep the court from saying things that might have
been unwise about standing and political question.
Dr. Marcus: Like what?
Justice Ginsburg: It was surprising to me how strong the sentiment was for going ahead and
deciding the preliminary questions. For even if you jumped those hurdles,
there would be no question left on the merits, because the Supreme Court
had decided it was okay to pay chaplains.
Dr. Marcus: And this was in a state legislation, Nebraska, as I remember.
Justice Ginsburg: Yes. But in Chief Justice Burger’s opinion, he referred to the practice
since the beginning of the Nation, of having chaplains and paying
chaplains in the U.S. Congress. So in establishing the propriety of
Nebraska’s doing this, he, in effect, said the federal Congress could engage
chaplains. He used the federal practice to explain why it was all right for
Nebraska’s Legislature to engage a chaplain. It was tradition understood248
by the founding fathers to be compatible with the Establishment Clause,
just like “God save the United States and this Honorable Court.”
Dr. Marcus: Well, that’s one that I have to take issue with. Chief Justice Burger came
to me and told me that “God save this Honorable Court” – you know, I
don’t believe that anyone has pinpointed when that began to be used. It
was not at the beginning.
Justice Ginsburg: I thought it came from England.
Dr. Marcus: It may have at some point been used in England, but to open the initial
Supreme Court in the 1790s, the initial, there is no evidence whatsoever
that this was used. So I don’t really know, and I’ve asked a thousand
times, you know, for the piece of paper that will show that this was used in
the Supreme Court or in a circuit court.
And, in fact, this is a different question, the use of prayer before a
court starting, a court session beginning, and there is evidence that in the
circuit courts, not at all in the Supreme Court, but in the circuit courts in
New England, Chief Justice Jay, when he rode circuit and anyone else
when he rode circuit, permitted a clergyman to open the session, as they
put it, “addressing the throne of grace.” But it was not done in the South.
It was not done in the Middle Circuit. It was only in New England, where
it had been the tradition in their state courts.
Justice Ginsburg: Yes. I imagine that it was –
Dr. Marcus: That’s all it was. I mean, Jay, of all the founding fathers, really disliked
any kind of invocation of religion at a government function, the provincial249
congresses where he did not like it, but he felt it would really, you know,
make the people in New England go up in arms if he actually took a stand
and said, “No, we’re not going to do this anymore.” But they didn’t do it in
other courts, and I’m sure they didn’t do it in the Supreme Court when he
was the chief. So there’s just no indication of any of this in any of the
records. So it’s very interesting. I’d like to find out where they found that
particular piece of information, but I haven’t yet done that. Now, I take it
that you were not at all surprised by the Supreme Court decision in Marsh
v. Chambers.
Justice Ginsburg: No. It was eminently predictable.
Dr. Marcus: And sensible.
Justice Ginsburg: Yes.
Dr. Marcus: You said that you would use this case as your textbook case for –
Justice Ginsburg: Political question.
Dr. Marcus: Political question rather than –
Justice Ginsburg: Yes. To show that the analysis is artificial. Justiciability is supposed to
concern whether you can decide the question. The question here was, can
Congress do this. MacKinnon decides yes, Congress can do this, then
labels the issue a political question. It’s a misuse of the label. If you’re
going to decide the merits, so be it, but don’t call it a justiciability
decision. And that’s why I think the political question label is largely
confusing. We would probably be better off if we didn’t have it.250
Dr. Marcus: I also want to go back to one thing you said. This was with regard to the
lawyers saying that they did not want you to decide the case on the merits,
and it interested me because this came up, obviously a different context, in
the steel seizure case, which I studied in depth, where the lawyers for the
steel companies asked for a preliminary injunction, that’s all, and I gather
that on an equitable decision like that, you do not have to decide the
merits.
You might consider the preponderance or the harm that’s going to
be done to the party, but you don’t have to decide the merits. And the
district judge said, “Well, if I want to, would you like me to do it?” And
there were seven or eight different steel companies on the suit and all
different lawyers, and I won’t mention which ones.
The lead lawyer said, “No, no, we’re quite content just to get the
preliminary injunction.” Only one other lawyer said, “Ha! We’ll take the
whole hog.” And he went ahead and did it.
Justice Ginsburg: But that’s not so extraordinary, the idea of combining the decision on the
motion for the preliminary injunction with the decision on the permanent
injunction. It happens not infrequently in copyright cases. Whenever
you’re trying to get an immediate stop order, you say to the court, “I have
enough here to show that I have a reasonable probability of success on the
merits. Keep the status quo in the interim.” The Court may sometimes
say, “Well, what you presented to me seems so complete, why not just
decide the permanent injunction now and pass by the preliminary stage.”251
That’s a fairly well-established technique. After all, to get a preliminary
injunction, you do a preview of what you would prove to establish
entitlement to permanent injunctive relief, whereas justiciability questions
are supposed to be discrete, not the same question as is the case with
preliminary and permanent injunctions.
Dr. Marcus: But in this case, in Murray v. Buchanan, did you really think there was not
a sufficient record for you to go ahead?
Justice Ginsburg: No. I thought that there was enough already in the record. I thought that
what we should do, if the parties agreed, was to give them a chance to
brief the merits, because they framed their briefs to address only the
standing and political question issues.
There was already in the district court record evidence of historical
practices, not only the oath and “In God we trust” on coins. But the
lawyers told us they had more evidence they wanted to put in. So we said,
“All right.” The potential loser wanted to present more to the court of first
instance. When the potential loser says, “There’s not enough currently in
the record for me,” then I think appellate courts must go with that. The
plaintiffs in Murray v. Buchanan had been thrown out of the district court.
They were appealing. We said, “Is there enough here we can go on to
decide the merits?” They said, “No. There are things we want to put
before the district court.”
Dr. Marcus: So it was the plaintiffs who wanted to do that.
Justice Ginsburg: Yes.252
Dr. Marcus: Because I was wondering why in the world, because even though you
don’t decide the merits on the justiciability issue, I’m guessing that you had
an idea what the answer might be.
Justice Ginsburg: Yes.
Dr. Marcus: On the merits. And I couldn’t see Mike Davidson [unclear].
Justice Ginsburg: No.
Dr. Marcus: He was not objecting.
Justice Ginsburg: No. The request came from the plaintiffs, and the defendants concurred in
the view that there was more material to present to the district court if that
court were going to decide the merits. But it was the plaintiffs, now
appellants, who were saying, “The only issues we are appealing now are
these justiciability issues. We should have another chance on the merits
before the district court.” It’s a little different from a district court, the
court of first instance, saying, “Let’s have the whole show right now
instead of just the preview.” It’s the same court that’s doing the decision-
making. The court of appeals, as I’ve said before, has a place in the
hierarchy. It’s a court that reviews the decision of another court, not a
court that makes decisions initially.
Dr. Marcus: Now, since Chambers v. Morris, or Morris v. Chambers, intervened, so
you didn’t have to say anything much on standing and Justice –
Justice Ginsburg: We said nothing about it.
Dr. Marcus: Yes. Well, what happens now, I mean, or what has happened to what you
did say originally in the three-panel –253
Justice Ginsburg: It’s not there. It’s, again, comparable to a law review article, simply a
position, not a precedent.
Dr. Marcus: It’s gone.
Justice Ginsburg: Right. The only thing that the D.C. Circuit ultimately ruled is, “The
Supreme Court has given us an answer on the merits. Therefore, there’s
no real case left. So, goodbye. Dismiss the complaint.”
Dr. Marcus: And have similar issues been litigated on the Establishment Clause issue
with standing where this would be applicable?
Justice Ginsburg: No. Flast v. Cohen remains the law for the nonce. If this Court were to
have that very same question again, would it come out the same way it did
in Flast? I wouldn’t bet on how it would come out today.
Dr. Marcus: Well, that’s a good place to stop. We won’t place any bets on anything.
END OF SESSION SIX